Allahabad High Court
Indra Pratap Tiwari vs State Of U.P. on 13 December, 2021
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Case :- CRIMINAL APPEAL No. - 1588 of 2021 Appellant :- Indra Pratap Tiwari Respondent :- State of U.P. Counsel for Appellant :- Dhirendra Kumar Mishra Counsel for Respondent :- G.A.,Anuj Pandey,Sushil Kumar Singh Hon'ble Mrs. Sangeeta Chandra,J.
(C.M. Bail Application No. 137168 of 2021)
1. This First Bail application has been filed along with Criminal Appeal No.1588 of 2021 by the appellant Indra Pratap Tiwari against the judgement and order dated 18.10.21 passed by the III Additional Sessions Judge Faizabad/Ayodhya in Special Case number 3012/2018; for suspension of sentence and conviction.
The facts of the case in brief are that on the basis of a letter sent by the Principal of Saket Postgraduate Degree College Ayodhya Sri Yaduvansh Ram Tripathi, to the Superintendent of Police, the Superintendent of Police directed PS Ram Janmabhoomi, Ayodhya, to register FIR and investigate. The FIR 24/1992 was registered on 18.02.1992 under Sections 420, 467, 468 and 471 I.P.C., against three accused of which we are concerned only with facts of the present case. Charge Sheet was submitted after investigation. The allegation in the FIR was that the appellant had submitted forged marksheet of BSc. part II and was promoted in BSc. part III in the said College on the basis of such forged mark sheet. Three prosecution witnesses were examined. PW1 was the Office Superintendent in Saket Degree College and he stated on the basis of documentary evidence i.e. Register maintained of marks obtained by all students in examinations held in the College that the appellant had failed in BSc. part II examination in 1990 but had taken admission BSc. part III on the basis of mark sheet showing him to have passed. PW2 was the Senior Assistant (Confidential) in the Faizabad University, and on the basis of documentary evidence available in the University proved that the appellant had failed in BSc. part II examination held in the College. P.W.3 was the Head Moharrir of the Police Station concerned and had proved the handwriting of the then Head Moharrir who had noted the F.I.R. and Investigating Officer who had submitted the charge sheet. The learned Trial Court gave opportunity to the appellant under Section 313 Cr.P.C. to submit his evidence. Except for statement on oath that he had not taken the help of any forged mark sheet to take admission in BSc. part III in Saket Degree College no documentary evidence was produced by the appellant to disprove the prosecution charge that despite having failed in BSc. part II the appellant had shown himself to have passed in the said examination, and on the basis of forged mark sheet had taken admission in BSc. part III in the said College. The learned Trial Court having found all three accused guilty of forging their mark sheets of different years while studying in Saket Degree College and taking admission in the next class on the basis thereof found the charge of Sections 420, 468 and 471 I.P.C. proved. After hearing the counsel for the accused on the quantum of punishment, the learned Trial Court directed them to serve three years imprisonment along with fine for being guilty under Section 420 IPC, five years imprisonment along with fine for being guilty under Section 468 IPC, and two years Imprisonment along with fine for having been found guilty under Section 471 IPC all the three sentences were to run concurrently.
2. I have heard learned Senior Advocate, Shri I.B. Singh assisted by Sri Dharmendra Misra for the appellant, learned A.G.A. Shri S. P. Tiwari, for the State, and Shri H.G.S. Parihar, learned Senior Advocate assisted by Sri Ashish Kumar Singh for the objector Junaid Ahmad (hereinafter referred to as Objectior-1) and Shri Sushil Kumar Singh, Advocate for another objector Brijendra Pratap Singh (hereinafter referred to as Objector-2).
3. Learned counsel for the appellant has mentioned three grounds mainly for challenge to the order under appeal . Firstly, it has been argued that the Trial of the case is vitiated on the ground that it was tried and decided by an incompetent Court. The charge against the applicant was for offences under Sections 420, 468, 471 I.P.C., which are triable by a Magistrate. Appeal against such order is maintainable before before the Sessions Court. In the light of orders passed by the Supreme Court in the case of Ashwini Kumar Upadhyay versus Union of India and Others, Writ Petition Civil No. 699 of 2016, the Allahabad High Court proposed the formation of one special MP/MLA Sessions Court at Allahabad for which notification was issued on 21.08.2018. Later on the Allahabad High Court circulated two letters dated 26.09.2018 and 19.10.2018, whereby all District Judges were directed to transfer all pending cases relating to MPs and MLAs to Special Sessions Court at Allahabad. On 4.12.2018 the Supreme Court directed all States to create one Special Sessions Court and one Special Magisterial Court in each district in order to dispose of all pending criminal cases relating to sitting and former legislators on a priority basis. In the State of U.P. till date no Special Magisterial Court for MP / MLAs has been formed. This fact was noticed by the Supreme Court in its latest order dated 24.11.2021 passed in writ petition filed by Mohammed Azam Khan challenging his Trial by the Special Sessions Court instead of by a Magistrate at Rampur.
4. The learned counsel for the appellant has argued about the prejudice caused to the Appellant due to Trial conducted by the Additional Sessions Judge. It has been argued that the appellant 1) has lost the opportunity of one appeal before the Sessions Judge. 2)The procedure for warrant Trial by a Magistrate is given in chapter XIX, Section 238 -250 of the Cr.P.C. 3) Under chapter XVIII Sections 225 -237, provide for Trial by Sessions Court. Therefore wrong procedure has been adopted for prosecution of the appellant. 4) It has been submitted that the appellant cannot be treated as a separate class, because of an illegal Notification issued by the High Court, which has already been set aside by the Supreme Court And he cannot be discriminated against in the matter of his Trial, as opposed to other similarly situated persons. 5) It has been submitted that the Supreme Court has already expunged the proceedings before the Sessions Judge, while directing the matter to be decided by the Magistrate from the stage from which the file was sent to the Additional Sessions Judge.
5. It has been argued that the case of the appellant being triable by the Court of Magistrate, it's Trial was transferred to a DJ/Special Judge MP/MLA Court in September 2019 by an order of the High Court dated 22.08.2019. The learned counsel for the appellant has placed reliance upon judgement rendered in A.R. Antulay versus R.S. Naik, AIR 1988 SC 1531 where the Supreme Court had quashed the proceedings because the Trial was not conducted by the competent Court although such Trial had been ordered by the Supreme Court itself.
6. The Supreme Court had observed in A.R. Antulay (supra) that "having regard to the enormity of the consequences of the error to the Appellant and by reason of the fact that the directions were given Suo Moto,We do not find there is anything which can detract from the power of the Court to review its judgement Ex Debito Justitiae. "In case injustice has been caused. No Court, however high, has jurisdiction to give an order unwarranted by the Constitution" and therefore, the order dated 16.02.1984 was recalled by the Supreme Court in order to rectify that injustice in the peculiar facts and circumstances of the case.
7. The learned counsel for the appellant read out para 8,9, and 10, And 11 of the order dated 24.11.2021 passed by the Supreme Court in Ashwini Kumar Upadhyay case. The observation- "we further direct the cases triable my Magistrates which are pending before the Sessions Court in view of the circular dated 16 August 2019 shall stand transferred to the Court of competent jurisdiction. However, the entire record and proceedings shall be transferred to the Court of the designated Magistrate and the proceedings shall commence from the stage which has been reached prior to the transfer of the proceedings, as a consequence of which the Trial shall not have to commence afresh."; has been read out by the learned counsel for the appellant to argue that the Supreme Court had expressed an opinion that "the proceedings shall commence from the stage which has been reached prior to the transfer of the proceedings" should be read in isolation by this Court to mean that the Supreme Court has expunged all the proceedings which have taken place in the Sessions Court and the Trial would commence from the stage it had reached in the Court of the Magistrate prior to the wrong transfer of the proceedings by the notification of the High Court.
8. This Court cannot interpret the phrase as pointed out repeatedly by the learned counsel for the appellant in the manner in which it has been sought to be interpreted as it would render the later phrase "as a consequence of which the Trial shall not have to come in afresh" redundant and otiose.
9. Secondly, it has been submitted that registration of one single FIR for three different offences, against three different persons for offences committed at three different times was not maintainable. It has been argued that the allegation of the complainant, the Principal of Saket Degree, College related to three different alleged occurrences where three different students at three different points of time, studying in three different courses run by the College, had allegedly forged the mark sheet for admission/promotion to the next class. There was no allegation of conspiracy or abetment among the three Persons. They were not even distantly related. None of the occurrences were connected to each other or a part of the same transaction. As per Section 154 of the Code of Criminal Procedure the FIR should relate to the commission of "an offence" and not many offences which are not correlated to each other.
10. It was argued that an F.I.R. was lodged on 18.02.1992 under Section 420, 467, 468, 471 I.P.C. at PS Ram Janma Bhumi Ayodhya Faizabad by the Principal of Saket Degree College against three students referring to earlier letter sent by him to the Superintendent of Police, Faizabad. The F.I.R. stated that three persons had forged their marksheets and taken admission in the next year of their degree courses although they had failed. The first such person was Phoolchand Yadav who had taken B.Sc. part I examination in 1986 with Roll number 60999, his result showed him failed. He took back paper and then made interpolation in the back paper mark sheet to show himself, as passed. As a result, he took admission in B.Sc. Part II in the following year. Similarly, Indra Pratap Tiwari, the appellant herein, had taken B.Sc. Part II examination in 1990 with Roll number 4263. He failed but showed himself as passed and took admission in B.Sc. Part III in the following session on the basis of a forged mark sheet. He was also elected Secretary of the Students Union. When this fact came to the knowledge of the University he was sent a notice to which he failed to reply. Consequently, the University struck off his name as a student and also cancelled his Election as Secretary of the Students Union. Shree Krupa Nidhan Tiwari took LLB first year examination in 1989 with Roll number 91570, he was declared failed but he showed himself to be passed by forging the mark sheet and took admission in LLB second year in academic year 1990-91.
11. It has been further submitted that Code of Criminal Procedure defines how a Court should exercise its power in such a case where one single FIR are has been lodged. Under Section 221 and 223 of the Cr.P.C. it is provided that separate charges shall be framed against separate accused persons and the Trials should be conducted separately. The accused however were tried jointly in violation of such procedure. It has been argued that under Section 464 Cr.P.C. if the Court of appeal finds that the charge framed against the accused person had some irregularity or error in it, then it may direct a new Trial to be conducted.
12. Thirdly, it has also been submitted that conviction of the appellant is based upon allegedly forged document that is photocopy of a mark sheet. The marksheet was never produced in the original before the learned Trial Court, it was never proved by any witness in accordance with the provisions of the Indian Evidence Act. The learned Trial Court convicted the appellant on the basis of Secondary Evidence in gross violation of Section 65 of the Indian Evidence Act. The appellant had been tried and convicted in violation of the procedure established by law which vitiates the entire proceedings. It has been argued by the learned counsel for the appellant that three persons were tried together for different offences and convicted. One of these three persons had approached this Court in Criminal Appeal No. 1761 of 2021, where after admitting the Appeal and calling for lower Court record, a coordinate bench observed that there were inconsistencies in the statements of prosecution witnesses and that the appellant had not misused his liberty when he was on bail during Trial, and has granted bail to the appellant Krupa Nidhan Tiwari by its order dated 15.11.2021.
13. The objections filed by the State to the application moved by the appellant has stated besides the facts of the case as noticed in the judgement under Appeal; that against the appellant I.P. Tiwari a total of 35 criminal cases are pending. The criminal history of the appellant has been filed as Annexure to the said objections showing cases under various Sections including Sections 307 and 302 pending since 1986, 1991 ,1992 and 1993 up to 2012 at Various stages in different Courts. Cases under Section 3 of the U.P. Control of Goondas Act and Sections 2 & 3 of the U.P. Gangsters Act have also been repeatedly instituted by the police in various years.
14. The objector-1 Mohammad Junaid, has filed an application praying for appropriate orders to be passed for prosecuting the appellant. It has been submitted that Objectior-1's Sumo Jeep was looted on 14.03.1997. F.I.R. was lodged in Case Crime No.77 of 1997 at P.S. Singramau at Jaunpur. On 03.06.1997 the appellant Indra Pratap Tiwari was arrested in Sonebhadra in Case Crime No. 142 of 1997, under Sections 302 and 506 I.P.C. The looted jeep of the objector-1 was recovered from his possession. Thereafter the police submitted charge-sheet against the appellant in Case Crime No.77 of 1997 at Jaunpur. While being arrested in Case Crime No.142 of 1997 at Sonebhadra, the appellant claimed to be resident of Village Gauhaniya P.S. Haraiyya, District Basti, and was released on bail giving the said fake address. He could not be traced later on as his residence was actually in village Baraipara, P.S. Maharajganj, District Faizabad. The appellant never appeared in Case Crime No.77 of 1997. Non bailable warrant was issued and process under Section 82 and 83 was also issued by the Trial Court in District Jaunpur. The appellant thereafter managed the loot of Court records from the office of the Judicial Magistrate-IInd, at Jaunpur for which FIR was registered as case Case Crime No.117 of 2016 at P.S. Line Bazar, District Jaunpur under the signature of the Judicial Magistrate-IInd, Jaunpur. When the file of case Crime number 77 of 1997 could not be traced, the objector-1 filed a petition under Section 482 Cr.P.C. No.29263 of 2018, Mohammad Junaid Versus State of U.P. and this Court directed reconstruction of the record and to conclude the Trial proceedings of the concerned case within a period of six months without granting any unnecessary adjournments. The then Judicial Magistrate-IIIrd, Jaunpur, reconstructed the file and summoned the accused through order dated 22.06.2019. Despite best efforts of the police, the legislator I.P. Tiwari could not be produced before the Trial Court at Jaunpur. Later on news was received that he was incarcerated in jail on being convicted on 18.10.2021. The Additional Chief Judicial Magistrate-IIIrd, Jaunpur thereafter issued Bailable warrant against I.P. Tiwari to facilitate the hearing of Case Crime No.77 of 1997 at Jaunpur.
15. It has been submitted by Objector 1 that the Appellant has been absconding from the Trial proceedings for last 25 years and thus the Objector 1, had locus to file application objecting to the prayer for grant of bail made by the appellant in this appeal as per law settled by the Supreme Court in Ratan Lal Versus Prahlad Jat and Others Criminal Appeal No.499 of 2014 decided on 15.09.2017, and Naveen Singh Versus State of U.P. AIR Online 2021 Supreme Court 138. It has further been submitted by Shri H.G.S. Parihar that in Case Crime No.24/1992, in which he has been ultimately convicted, the appellant misused his position and moved repeated applications under Section 70 (2) Cr.P.C. and never appeared before the Trial Court. He moved applications on 26.07.2005, 17.11.2011 and 05.05.2017, true copies of which have been filed as Annexures to the objections. In all three applications the appellant stated that he had no information about pendency of the case relating to his fake marksheet. It has been pointed out by Shri H.G.S. Parihar that the appellant contested U.P. Assembly Elections thrice, in 2007, 2012 and lastly in the year 2017, and in all the three affidavits filed by him before the Election Commission Case Crime No.24 of 1992 was mentioned, but in the application submitted by him under Section 70 (2) in 2011 and 2017, he showed that he was unaware of the Case relating to fake marksheet being pending.
16. It has been argued by Sri H.G.S. Parihar that the appellant never sought regular bail but only filed applications under Section 70 (2) for recall of non-bailable warrants issued by the learned Trial Court to ensure his presence. Each time he succeeded also in getting Non bailable warrants recalled. In Naveen Singh Versus State of U.P. and Others, the appellant had approached the Supreme Court against grant of bail by the High Court to Respondent No.2 who was accused of forging Court records and showing himself as acquitted in Sessions Trial. The appellant was opposed by the Respondent No.2 on the ground that he had no locus to oppose the grant of bail secured by the Respondent No.2. It was submitted that he was neither the complainant nor the affected person from the alleged offence in Case Crime No.433 of 2019. On the contrary he had a personal motive in keeping the accused behind the bars. The application was politically motivated as the appellant was a third person who was not connected with the matter under consideration and had a personal axe to grind. The Supreme Court having heard the appellant on the merits of the order passed by the High Court granting bail to the Respondent No.2 and also the counsel for the Respondent No.2 objecting to such appeal being filed, observed that the Respondent No.2 is facing Trial for offences under Sections 420, 467, 468, 471, and 120-B IPC in which FIR was lodged by the District and Sessions Judge, Unnao, at the directions of the High Court in another case. It observed in Paragraph 8.4 that so far as submissions on behalf of the accused regarding locus of the appellant is concerned the Court had considered the fact that it was the appellant who approached the High Court alleging tampering of Court record by the Respondent No.2 accused and thereafter the Court had directed the learned Additional Session Judge, Unnao, to submit his comments. The Session Judge submitted his enquiry report on the basis of which FIR was lodged therefore it could not be said that the appellant had no locus to file the present application for cancellation of bail. It further observed: "Even otherwise in a case like this, allegations of tampering with Court order and for whatever reason the State has not filed the cancellation of bail application, locus is not that much important and it is insignificant."
17. In Ratan Lal Versus Prahlad Jat and others Criminal Appeal No.499 of 2014 decided on 15.09.2017, the Supreme Court was considering an appeal filed by a private person seemingly not the affected person, against an order passed by the High Court under Section 482 Cr.P.C. setting aside order passed by the Additional Sessions Judge rejecting the application of the accused filed under Section 311 Cr.P.C. The locus of the appellant was challenged by the respondent alleging that the High Court''s order could have been challenged by the State and not by private appellant. The Supreme Court referred to the Blacks Law Dictionary and the meaning assigned to the term "locus standi" and then observed that the orthodox rule of interpretation regarding locus standi of a person to reach the Court has undergone a sea change with the development of Constitutional law in India, and the Constitutional Courts have been adopting a liberal approach in dealing with cases and rejecting objections raised merely on hyper technical ground of locus standi. It was observed thus:-
"It is now well settled that if a person is found to be not merely a stranger to the case, he cannot be non-suited on the ground of his not having locus standi." The Supreme Court observed that, "in criminal Trial the locus standi of the complainant is a concept which is completely foreign. Anyone can set the criminal law in motion except where the statute enacting or creating an offence indicates to the contrary." Supreme Court referred to the Constitution Bench judgment in the case of A.R. Antulay Versus Ramdas Srinivas Naik 1984 (2) SCC 500, where the Supreme Court had observed that the general principle regarding criminal law being set in motion by any person is founded upon a policy that an offence, that is, an act or omission made punishable by law for the time being in force, is not merely an offence committed in relation to the person who suffers the harm but it is also an offence against the society. The society for peaceful development is interested in the punishment of the offender. Penal statutes are enacted for the larger good of the society, and the right to initiate proceedings cannot be whittled down or circumscribed or fettered by putting it into a straitjacket formula of locus standi unknown to criminal jurisprudence.
18. The Supreme Court also referred to judgement rendered by it in Manohar Lal Versus Dinesh Anand and Others 2001 (5) SCC 407 and Arunachalam Versus PSR Sadananantham and Others 1979 (2) SCC 297 that although it is the duty of the State to get the culprit booked for the offence committed by him, if the State fails in this regard and the party having bona fide connection with the cause of action, who is aggrieved by the order of the Court, cannot be left at the mercy of the State and without any option to approach the appellate Court to seek justice. The Supreme Court granted special leave to appeal and also allowed the appeal thereafter.
19. Sri Brijendra Pratap Singh the Objector 2 has taken almost common grounds to challenge the bail application moved by the appellant. His locus standi disclosed in his affidavit is only that he is a student of Kamta Prasad Sunderlal Saket Postgraduate College, and that he was worried that the practice adopted by the appellant shall be followed by other students also thus lowering the standards of education and morals in the society. He came to know on enquiry that the appellant and two other students had forged their mark sheets and an F.I.R. was lodged by the Principal of the College in 1992, but Trial could not be concluded expeditiously. He preferred a Criminal Miscellaneous Case Number 5762 of 2018 under Section 483 Cr.P.C., praying for early disposal of the Trial. This Court by its order dated 20.09.2018 directed the learned Trial Court to decide the case within a period of six months.
20. It has been argued by Sri Sushil Kumar Singh that Locus standi in criminal jurisprudence is of no relevance. The appellant was wanted in Trials pending in Basti, SoneBhadra, Jaunpur, Faizabad and many other districts of U.P., and he was a sitting legislator of the ruling political party and he could not be allowed to make a mockery of the judicial process by not only managing to snatch and loot Court records but to place false information before the district Court and before the High Court as well.
21. The counsel for the Objector 2 referred to the appellant managing to get a rifle license number 54 from district Basti by giving a fake address. On this fake identity bail applications were filed by him but presence of the appellant could not be ensured by the Court concerned later on because of deliberate misrepresentation regarding his identity and true address. Sri S.K. Singh has also pointed out how in case crime number 142 of 1997 under Section 302 and 506 I.P.C. in Sonebhadra on 03.06.1997, the weapon of attack was the same rifle which was issued from district Basti. After gaining knowledge of fake identity being used to obtain the arms license, the District Magistrate Basti has cancelled the arms license but this rifle license has not yet been surrendered till date by the appellant.
22. Almost the same facts have been mentioned in the application of the Objector 2, as have been mentioned by Objector 1 regarding filing of repeated applications for recall of non-bailable warrant orders before the Trial Court at Faizabad. Also, it has been submitted that after bailable warrants were issued by the learned Trial Court in Jaunpur on 22.10.2021 in Case Crime NO. 77 of 1997, the jail authorities have not yet produced the appellant before the learned Trial Court at Jaunpur though the date fixed was 9.11.21. It has been argued that the reason for this is not far to seek. The Appellant is in jail since 18.10.2021 and his Bail application is pending before the High Court. As soon as he is released on bail, he shall again abscond and Trial pending at Jaunpur since 1997 in Crime Nos. 77 and at Sonebhadra in Case Crime No. 142 of 1997 will again remain pending. The objector 2 has disclosed a criminal case history of 40 cases instead of 35 as mentioned in the counter affidavit filed by the State of UP.
23. The learned counsel for the appellant has objected vehemently to the Court entertaining objections by the said Objectors 1 and 2, Mohammed Junaid and Brijendra Pratap Singh. It has been submitted that the Court is considering a criminal appeal filed under Code of Criminal Procedure, and it is neither a Public Interest Litigation nor a Section 482 Petition, wherein inherent power of the High Court can be exercised to secure the ends of justice. It has been argued that in the Cr.P.C. one amendment has been carried out in 2019 giving the right to the victim only to file an appeal and to be heard through Public Prosecutor in Trial or appeal. No right to be heard has been extended to any stranger who is not even claiming to be a victim in criminal appeal. The applications of two objectors should be rejected by this Court outrightly.
24. It has been submitted by the learned counsel for the appellant that Mohammad Junaid is a close associate and a gang member of renowned mafia who is presently in jail at Banda where he was transferred from Punjab on the directions of the Supreme Court. The bail application is being contested vehementally by such Objectors only to ensure that the right of the appellant to contest the upcoming Legislative Assembly elections is prejudiced.
25. It has been argued that such Objectors do not have any locus as they do not fall within the definition of victim as per Section 2(wa) of the Code. Section 2(wa) defines a victim "as a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged," and the expression victim includes his or her legal heir. None of the Objectors can be said to be victims and thus they have no right to be heard. The Supreme Court has observed in many cases that victim shall be a person who has suffered any "loss or injury" due to the alleged crime and some element of personal injury must be involved. Since the Objectors have no locus standi, their affidavits filed in support of such objections should be ignored by this Court. Objecting to the locus of Brijendra Pratap Singh, the learned counsel for the appellant submitted he is only 25 years of age and was not even born at the time when the appellant was studying in Saket Degree College and had allegedly forged his mark sheet to get promoted from BSc. part II to BSc. part III. Only because Brijendra Pratap Singh is a student of Saket Degree College, he cannot claim any locus to oppose the bail application of the appellant. Both the Objectors have been set up by the political rivals of the appellant namely Mukhtar Ansari and Abhay Singh respectively.
26. The learned counsel for the appellant has placed reliance upon Thakur Ram and others versus state of Bihar 1966 (2) SCR 740, and has read out paragraph 9 thereof, with regard to the observations regarding right of third-party to be heard in a criminal Trial. The Supreme Court observed that in a case which has proceeded on a police report a private party has really no locus standi . The criminal law is not to be used as an instrument of wreaking private vengeance by an aggrieved party against the person who, according to that party, has caused injury to it. Barring a few exceptions, in family matters the party who is treated as the aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all the steps necessary for bringing the person who has acted against the social interests of the community to book."
27. The counsel for the appellant has placed reliance upon judgement rendered in Shivakumar versus Hukam Chand and another 1999 (7) SCC 467 where it was observed that "it is not merely an overall supervision which the Public Prosecutor is expected to perform in such cases when a privately engaged counsel is permitted to act on his behalf. The role which a private counsel in such a situation can play is, perhaps, comparable to that of a Junior advocate conducting the case of a senior in a Court, on behalf of the Public Prosecutor albeit the fact that he is engaged in the case for a private party. If the role of the public prosecutor is allowed to shrink to a mere supervisory role the Trial would become a combat between the private party and the Accused which would render the legislative mandate in Section 225 of the Code a dead letter".
28. Learned Counsel for the appellant has placed reliance upon judgement of a Full Bench of Delhi High Court rendered in Ramphal versus State in Criminal Appeal No.1415 of 2012 on 28.05.2015. The Full Bench was considering the scope of the term "victim" and whether it would mean only legal heirs entitled to the property of the victim under the law applicable of inheritance, or would embrace any person who has suffered any loss or injury caused by reason of the act or omission for which the accused person had been charged. The Court considered the definition given of the term victim Under Section 2 (wa) of the Cr.P.C. and also the terms "loss "or "injury "which have not been defined under the Cr.P.C. but have been defined by the I.P.C. Under Section 44 "injury "is defined as "any harm whatever illegally caused to any person in body, mind, reputation or property" "loss "is defined in terms of wrongful loss and refers to "loss by unlawful means of property to which the person losing it is legally entitled." It was observed by the Bench that injury as defined, does not only include physical harm resulting from the offence as there can be direct and proximate emotional injuries equally resulting from the crime. It referred to judgement rendered by a Constitution Bench in PSR Sadanantham Versus Arunachalam 1980 (3) SCC 141 on the "standing" of a private person other than a complainant under Section 191 (a) to appeal against an acquittal. The question faced by the Supreme Court in the said case was "whether a private citizen (the brother of the deceased victim) could appeal by way of special leave under Article 136 of the Constitution of India against an order of acquittal of the petitioner in that case." The Supreme Court granted leave, allowed the appeal and restored the conviction and sentence of the Trial Court. The convicted petitioner approached the Supreme Court invoking its Writ jurisdiction contending that the Supreme Court''s order was a nullity as it lacked jurisdiction. The Supreme Court observed in Paragraph-24 that "in India the criminal law envisages the State as the prosecutor. Under the Cr.P.C., the machinery of the State is set in motion on information received by the police or on a complaint filed by a private person before a Magistrate. If the case results in an acquittal the right to appeal against the acquittal is closely circumscribed. Under the old Code of Criminal Procedure the State was entitled to appeal to the High Court. The complainant could do so only if granted special leave to appeal by the High Court." The right of appeal was not given to other interested persons. After referring to the Law Commission of India's recommendation the Supreme Court observed "We think that the Court should entertain a special leave petition filed by a private party, other than the complainant, in those cases only where it is convinced that the public interest justifies an appeal against the acquittal and that the State has refrained from petitioning for special leave for reasons which do not bear on the public interest but are prompted by private influence, lack of bona fide and other extraneous considerations. We would restrict accordingly the right of a private party, other than the complainant, to petition for special leave against an order of acquittal. It is perhaps desirable to keep in mind that what follows from the grant of special leave is an appeal and that jurisdiction must, therefore, be invoked by the petitioner possessing a locus standi recognised in law."
29. The Delhi High Court referred to the judgement rendered by the Supreme Court in the case of NHRC Versus State of Gujarat 2004 (8) SCC 610 where it had been observed that "it needs to be emphasised that the rights of the accused have to be protected. At the same time the rights of the victims have to be protected and the rights of the victims cannot be marginalised. Accused persons are entitled to a fair Trial where their guilt or innocence can be determined. But from the victim's perception the perpetrator of a crime should be punished. They stand equally poised in the scales of justice."
30. The said judgment of the Delhi High Court in fact supports a wide interpretation of the term "Victim" and the terms "loss" and "injury" and held that even those persons who were not directly in the line of inheritance as legal heirs of the victim/deceased, could also approach the Court in Appeal.
31. The learned counsel for the appellant also placed reliance upon Anand Sen Yadav versus State of U.P., Criminal Appeal No.1061 of 2011 and connected matters decided on 18.10.2012, where this Court considered Section 24 of the Cr.P.C. which defines Public Prosecutor and on the basis of judgment rendered by the Supreme Court 1999 (7) SCC 467, it observed That a public prosecutor is not expected to show eagerness to reach the case in the conviction of the accused somehow or the other, irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be to speak out in fairness not only to the Court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during Trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to bring it to the fore and make it available to the accused even if the defence counsel overlooked it. "Public Prosecutor has the added responsibility of bringing it to the notice of the Court if it comes to his knowledge. A private counsel, if allowed a free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted. That is the reason why Parliament applied a bridle on him and subjected his role strictly to the instructions given by the public prosecutor."
32. The learned counsel for the appellant has also placed reliance upon an order passed by the Delhi High Court in People's Union for Civil Liberties versus CBI; Criminal Revision Number 339 of 1996, decided on 10/04/1997; and an order passed by the High Court of Punjab and Haryana in Kuldeep Singh versus State of Haryana Criminal Revision Number 1030 of 1979, decided on 4 September 1979 ; and Prisoners Rights Forum versus State of Tamil Nadu 2019 SCC online Madras 2476; however, such cases as have been cited only reiterate the position in law regarding locus Standi of third party in criminal Trial and role of Public Prosecutor and are therefore not being considered individually by this Court.
33. In the Supplementary Rejoinder Affidavit of the Appellant details regarding the Objector2 being set up by one Abhay Singh, a hardened criminal who had lost the elections against the appellant in the year 2017 from Gosain Ganj constituency at Ayodhya, have been mentioned giving photographs of the Facebook page of Brijendra Pratap Singh showing his proximity to the said Abhay Singh; the appellant's political rival and also a history sheeter. The learned counsel for Appellant has also referred to the argument raised by the Objectors us that the appellant never applied for regular bail before the learned Trial Court. In response, he has submitted that as is evident from the Court record, in the Case Diary at Parcha number 045765 dated 26 September 1994, it has been noted by the Investigating Officer that all the accused persons including the appellant, are on bail.
34. In regard to the argument regarding criminal history of 35 cases shown against the appellant, the learned counsel has submitted that only one case against the Appellant is pending under Section 323, 5046IPC in which he has been released on bail. In all cases against the Appellant he had been acquitted or Final Report had been submitted or the proceedings were dropped. In paragraph 21 of the Rejoinder Affidavit filed by the Appellant mention has been made of 35 cases which were listed in the Counter Affidavit filed by the State of UP. In some cases Final Report had been filed, in others the appellant had been Acquitted. In still others, the proceedings were dropped and only one criminal case was pending against him. It has been argued that Criminal record for the purpose of grant of bail can only be seen for such offences where Trial was pending.
35. This Court has perused the list of cases filed in the Rejoinder Affidavit by the Appellant. It is apparent that case crime no.77 of 1997 and case number 142 of 1997, pending at Jaunpur and Sonebhadra, have not been mentioned.
36. The learned counsel for the appellant has place reliance upon paragraph 10 of the judgement rendered by the Supreme Court in Maulana Mohammad Aamir Rashidi versus State of UP and another 2012 (2) SCC 382, where the Supreme Court was considering the case of the appellant who was opposing the grant of bail by the High Court to a sitting member of Parliament who was arrested and was in jail for a long time during the course of Trial. The appellant had contended that the accused was a criminal with more than three dozen criminal cases involving serious offences against him. The High Court had observed that merely on the basis of criminal antecedents, the claim of the accused to bail cannot be rejected. The Supreme Court observed that the relevant Consideration for grant of bail order would be 1) the accused has been in jail for a long time, 2) the Trial had commenced and as assured by the State that the Trial will not be prolonged and would be concluded within a reasonable time, and 3) the High Court while granting bail had imposed several conditions for strict adherence during the period of release on bail.
This case is not of much help to the appellant as it related to an accused who was still facing Trial and the presumption of innocence was in his favour.
37. The learned counsel for the appellant has also placed reliance upon Prabhakar Tiwari versus State of UP and another 2020(11) SCC648 and paragraph 7 thereof where the factors that are to be kept in mind For cancellation of an order granting bail have been mentioned i.e. whether there has been a non-application of mind on the part of the Court granting bail or that the opinion of the Court granting bail is not borne out from a prima facie view of evidence on record.
Principles for Grant of Bail Post Conviction
38. This Court having gone through the case laws on grant of bail post conviction finds numerous instances where the Supreme Court has observed that suspension of sentence should be done in extremely rare cases. In Vijai Kumar versus Narendra and others 2002 (9) SCC 364, the Supreme Court has observed that the Court must take into account relevant factors like nature of accusation made against the accused, manner in which the crime was alleged to have been committed, gravity of the offence, desirability of releasing the accused on bail after they have been convicted for committing serious offence. The Supreme Court observed that Section 389(1) of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant. It was observed in para 20 thus- "There is a distinction between bail and suspension of sentence. One of the essential ingredients of 389(1) is the requirement of the appellate Court to record reasons in writing for ordering suspension of execution of the sentence or the order appealed against. If the appellant is in confinement, the Court can direct that he be released on bail or on his own bond. The requirement of Recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects, and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine".
39. In Preetpal Singh versus State of U.P. and others 2002 (8) SCC 645, the Supreme Court was considering the question of suspension of sentence after conviction under Section 304B, 406 and 498 A of the I.P.C. and Section 3 and 4 of the Dowry Prohibition Act 1961. It was observed that in an Application for suspension of sentence the "appellate Court was only to examine if there was such patent infirmity in the order of conviction that renders the order of conviction prima facie erroneous. Where there was evidence that has been considered by the Trial Court, it was not open to the appellate Court considering application under Section 389 to re-assess and/or re analyse the same evidence and take a different view, to suspend the execution of sentence and release the convict on bail." At the stage of an application under Section 389 (1) the High Court found merit in the argument that the brother of the victim had not been examined ignoring the evidence relied upon by the Sessions Court, including the oral evidence of the victim's parents. The Supreme Court observed that under Section 389 (3) of the Code the principles are different in case of sentence not exceeding three years and/or in the case of bailable offences. The Supreme Court relied upon Kashmira Singh versus State of Punjab 1977 (4) SCC page 291 and Babu Singh and others versus State of UP 1978 (1) SCC 579, to say that the appellate Court must consider whether any cogent ground has been disclosed giving rise to substantial doubts about the validity of the conviction and whether there is likelihood of unreasonable delay in disposal of appeal. The Supreme Court also relied upon observations made in Kalyan Chandra Sarkar versus Rajesh Ranjan and another 2004 (7) SCC page 528, where the Supreme Court had held in paragraph 11 that the Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. It was observed thus:-
"Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding innocence while bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind." Reference was made to Chaman Lal versus State of U.P. and another 2004 (7) SCC 525, and judgement rendered in Mauji Ram versus State of U.P. and another 2019 8 SCC 17, Ajay Kumar Sharma versus State of UP and others 2005 (7) SCC 507, Lokesh Singh versus State of UP and another 2021 (6) SCC 753, and Data Ram Singh versus State of U.P. and Another 2018 (3) SCC 22; where it was observed that reasons must be assigned while granting bail. The Supreme Court further observed in paragraph 36 -
"there is a difference between grant of bail under Section 439 of the Code of Criminal Procedure in case of pre-Trial arrest and suspension of sentence under Section 389 of the code of criminal procedure and grant of bail, post conviction. In the earlier case there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the Courts must be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by this Court in Data Ram Singh versus State of UP and another. However in case of post conviction bail, by suspension of operation of sentence, there is a finding of guilt and the question of presumption of innocence does not arise nor is the principle of bail being the rule and jail an exception attracted, once there is a conviction upon Trial. Rather, the Court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction for by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389 (1) of the Code of Criminal Procedure."
(emphasis supplied) The Supreme Court further observed in paragraph 39 -"In considering an application for suspension of sentence, the appellate Court is only to examine if there is such patent infirmity in the order of conviction that renders the order of conviction prima facie erroneous. Where there is evidence that has been considered by the Trial Court, it is not open to a Court "considering application under Section 389 to reassess and or re analyse the same evidence and take a different view, to suspend the execution of sentence and release the convict on bail. "
(emphasis supplied)
40. In Kishori Lal versus Roopa and others, 2004 (7) SCC 638, the Supreme Court was considering the informants' appeal against grant of bail under Section 389(1) Cr.P.C. by the High Court on the ground that during Trial, the accused respondents were on bail and had not misused the liberty granted to them. The Supreme Court observed that the High Court is duty-bound to objectively assess the matter and to record reasons for the conclusion that warrants suspension of execution of sentence and grant of bail. Mere fact that during the period when the accused persons were on bail during Trial there was no misuse of liberties does not per se warrant suspension of execution of sentence.
41. In Shyam Narayan Pandey versus State of U.P. 2014 (8) SCC 909, the Supreme Court was considering the scope of stay of conviction under Section 389 (1) of the Code of Criminal Procedure. The appellant had been convicted and sentenced to life imprisonment and fine. The High Court had considered the application made by the petitioner for staying conviction and had declined the relief. It was the contention of the appellant that he was innocent. He had been working as a Principal and if his conviction was not stayed he would lose his job and would be denied of his livelihood and would not be able to participate in subsequent selection procedures conducted by U.P. Secondary Education Service Selection Board Allahabad. The Supreme Court rejected such contentions. The Supreme Court observed that, "to be convicted means declared to be guilty of criminal offence by the verdict of the Court of law. That declaration is made after Court finds him guilty of the charges which had been proved against him. That is, in effect if one prays for stay of conviction, he is asking for stay of operation of the effects of declaration of being guilty. Unless there are exceptional circumstances the Appellate Court shall not stay the conviction and may not direct that the sentence be suspended. There are no hard and fast rules or guidelines as to what are those exceptional circumstances. However there are certain indications in the Code of Criminal Procedure 1973 itself as to which are those situations and a few indications are available in the judgements of the Supreme Court as to what are those circumstances."
(emphasis supplied)
42. The Supreme Court thereafter in paragraph 9 observed - "it may be noted that even for suspension of the sentence, the Court has to record reasons in writing of which some indication are given in the Code of Criminal Procedure pursuant to the recommendations made by the Law commission of India, and the observations of the Supreme Court in various judgements as per Act 25 of 2005. It was regarding the release on bail of a convict where the sentences of death or life imprisonment or of a period not less than 10 years. If the appellate Court is inclined to consider release of a convict for such offences, the Public Prosecutor has to be given an opportunity for showing cause in writing against such release. This is also an indication as to the seriousness of such offences and circumspection which the Court should have while passing the order on stay of conviction. Similar is the case with offences involving moral turpitude. If the convict is involved in crimes which are so outrageous and yet beyond suspension of sentence, if the conviction is also stayed , it would have serious impact on the public perception on the integrity of the institution. Such orders definitely will shake the public confidence in judiciary. That is why, it has been observed time and again that the Court should be very wary in staying the conviction specially in the types of cases referred to above, and it shall be done only in very rare and exceptional cases of irreparable Injury coupled with every possible consequence resulting in injustice.".
(emphasis supplied)
43. The Supreme Court observed further in paragraph 10 thus -
"In Ravi Kant S Patil versus Sarvabhauma S Bagali 2007 (1) SCC 673 the Supreme Court has held that, "the power to stay the conviction should be exercised only in exceptional circumstances where failure to stay the conviction would lead to injustice and irreversible consequences".
44. In Navjot Singh Sidhu versus State of Punjab and another 2007 (2) SCC 574, following Ravi Kant S Patil's (Supra) case at paragraph 6, the Supreme Court held as follows:
(6) "the legal position is therefore, clear that an appellate Court can suspend or grant stay of order of conviction. But the person seeking stay of conviction must advert to the consequences that may arise if the conviction is not stayed. Unless the attention of the Court is drawn to the specific consequences that would follow on account of the conviction, the person convicted cannot obtain an order of stay of conviction. Further, grant of stay of conviction can be resorted to in rare cases depending upon the special facts of the case."
45. In Sanjay Dutt versus State of Maharashtra 2009 (5) SCC 787 the petitioner appellant was found guilty under Sections 3 and Section 7 read with Section 251A and 1B of the Arms act 1959 and sentenced to 6 years rigourous imprisonment. The appeal against such judgement was pending consideration before the Supreme Court during which the petitioner was granted bail. The petitioner being desirous of contesting elections was disqualified in view of Section 8 subclause (3) of the Representation of People Act because of the aforesaid conviction and sentence. Therefore a petition was filed by him under Section 389 (1) praying that execution of the order of his conviction and sentence be suspended, pending final hearing of appeal, to enable him to contest elections. The Supreme Court held that the petitioner was convicted for serious offences challenge against which is still pending before the Supreme Court. The petitioner may be a senior artiste and son of a well-known film actor/politician and not a habitual criminal nor had been involved in any other criminal case, despite all these favourable circumstances, it was not a fit case where conviction and sentence could be suspended so that under Section 8 sub-clause (3) of the Representation of People Act the disqualification against the petitioner be removed. It was held that the power of the Court under Section 389(1) Cr.P.C. shall be exercised only under exceptional circumstances. In paragraph 10 and thereafter in paragraph 12 to 14 it was observed that Reliance placed on the judgement rendered and Navjot Singh Sidhu V state of Punjab 2007 (2) SCC 574 by the Petitioner was misplaced. In that case the petitioner was a sitting MP and could have continued as an MP even after his conviction and sentence in view of Section 8 subclause (4) of the Representation of People Act. The petitioner in Navjot Singh Sidhu's case resigned and expressed his desire to contest the election. In fact, that was the case where the Trial Court acquitted the petitioner and the High Court, in reversal, found the petitioner guilty. It was in those circumstances that the Supreme Court granted stay of the order of conviction and sentence. The Court while expressing no views on the merits of the case which would have even a remote possibility to prejudice either of the parties in appeal, made observations that in view of the serious offences for which he has been convicted by the Special Judge, the petitioners' prayer for suspension of conviction and sentence awarded by the Special Judge could not be be granted
46. In State of Maharashtra through CBI Anti Corruption Branch, Mumbai versus Balakrishna Dattatreya Kumbhar 2012(12) SCC 384, referring also to the two decisions cited above, it has been held in paragraph 15 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 applicants, in a judicious manner and examine whether the facts and circumstances involved in the case are such, that the warrant such course of action by it. The Court, 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 appellant will lose his job, if the same is not done...".
47. In Shakuntala Shukla versus State of UP and others AIR 2021 Supreme Court 4384, the Supreme Court was considering challenge to order granting bail to the accused pending appeal. The Supreme Court observed in para 11,11.1,11.2,&11.3, that the judgement of the High Court releasing the accused on bail did not take into consideration the conduct of the accused during investigation and Trial giving threats to the complainant side and other witnesses are offences under Section 504 and 506 IPC and can be said to be very serious offences as the accused had tried to interfere in the fairness of the investigation and the Trial. Such conduct ought not to have been taken by the High Court very lightly. The Court set aside the order of the High Court observing that it had committed a grave error in releasing the accused on bail pending appeals against the judgement and order of conviction.
48. In Somesh Chaurasiya versus State of Madhya Pradesh and others AIR 2021 Supreme Court 3563, the Supreme Court was considering an application for cancellation of bail granted to the second respondent by the High Court under Section 389 (1) of the Cr.P.C. pending his appeal against conviction for murder. The Supreme Court observed that the High Court should not have dismissed the application for cancellation of bail moved by the appellant and the State of Madhya Pradesh without looking into the fact that the appellant had committed murder during the period he was on bail as a result of suspension of his sentence in the pending appeal.
49. The Supreme Court made a reference to the judgement rendered in Atul Tripathi versus State of UP and others 2014 (9) SCC 177, where the procedure regarding consideration of bail under Section 389 (1) has been discussed in detail. It referred to the observation made by the Bench in Atul Tripathi (supra) that the appellate Court had to give opportunity to the Public Prosecutor to file written objections against the bail application. Such a stringent provision is introduced only to ensure that the Court is the apprised of all the relevant factors so that the Court may consider "whether it is an appropriate case for release having regard to the manner in which the crime is committed, the gravity of the offence, age, criminal antecedents of the convict, impact on public confidence in the justice delivery system et cetera. This procedure is intended to ensure transparency, to ensure that there is no allegation of collusion and to ensure that the Court is properly assisted by the State with true and correct facts with regard to the relevant considerations for grant of bail in respect of serious offences, at the post conviction stage".
(emphasis supplied)
50. The Supreme Court observed in paragraph 34 - "there are distinct doctrinal concepts in criminal law namely (1), the grant of bail before Trial or, what is described as pre-conviction stage; (2) setting aside an order granting bail when the principle must weigh in the decision on whether bail should be granted have been overlooked or wrongly applied; (3) the post conviction suspension of sentence under the provisions of Section 389 subclause (1) ; and (4) the cancellation of bail on the ground of supervening events, such as the conduct of the accused during the period of bail, vitiating the continuance of bail."
51. In State of Delhi Narcotics Control Bureau versus Lokesh Chadha 2021 (5) SCC 724 and Preet Pal Singh versus State of UP (Supra), the Supreme Court observed that there is a difference between grant of bail under Section 439 of the Code of Criminal Procedure in case of Pre-Trial arrest and suspension of sentence under Section 389 (1) of the Cr.P.C. and grant of bail, post conviction. Under Section 389 (1) the High Court must be duly cognisant of the fact that a finding of guilt has been arrived at by the Trial judge at the conclusion of Trial. The High Court may stay the execution of the sentence but it should keep in mind that there are sufficient reasons to do so which must have a bearing on the public policy.
52. In B.R. Kapoor versus State of Tamil Nadu 2001 (7) SCC 231 the Court had observed that an order of the appellate or original Court suspending the sentence of imprisonment had to be read in the context of Section 389(1) of the Code of Criminal Procedure and that under the provision, what is suspended is only the execution of the sentence and not the sentence itself. The Constitution Bench made it clear that the suspension of execution of sentence would not alter or affect the conviction, and therefore such a person would remain disqualified under Section 8(3).
53. In fact, in B.R. Kapoor (Supra) a person whose nomination was rejected on the ground of disqualification, got elected as leader of a party which secured the majority in the elections and became the Chief Minister and hence Article 164 was pressed into service. But even such argument was rejected on the ground that a person who was disqualified from contesting the elections, cannot take the route of Article 164. The contention was further raised in B.R. Kapoor (Supra) that sitting Members of Parliament or legislators are granted protection against removal from office by Section 8(4) of the Act during pendency of their appeal or revision against conviction, and that it is violative of the guarantee of equality under the Constitution, if the class of persons getting convicted before elections are placed at a disadvantageous position than the class of persons who are convicted after getting elected to the Parliament or the state legislatures. The Constitution Bench rejected this contention in BR Kapoor on the ground that constitutional validity of sub-Section (4) of Section 8 was not in question.
54. A challenge was made to Section 8 (4) in Lily Thomas Versus Union of India 2013 (7) SCC 653 on the ground of discrimination. While declaring the said provision to be unconstitutional, the Supreme Court held in Lily Thomas, that a Member of Parliament or state legislature who suffers a frivolous conviction, will not be remedyless. Taking note of decisions in Rama Narang versus Ramesh Narang 1995 (2) SCC 513, and Ravi Kant S. Patil versus Sarvabhauma S. Bagali 2007 (1) SCC 673, the Supreme Court held in Lily Thomas that the appellate Court had ample power under Section 389 (1) of the Code to stay the conviction as well as the sentence, and that whenever a stay of conviction itself has been granted, the disqualification will not operate.
55. In Rama Narang versus Ramesh Narang others 1995 (2) SCC 513 Relied upon by the counsel for the appellant, conviction of Managing Director of a company for an offence involving moral turpitude was suspended. The Supreme Court considered Section 389(1) which empowered the Appellate Court to order the execution of the sentence or order appealed against to be suspended pending the appeal. The Supreme Court considered the question as to what can be suspended under this provision, and held that it was the execution of the sentence or order which could be suspended. An order of conviction by itself is not capable of execution under the Code. It is the order of sentence or an order awarding compensation or imposing fine or release on probation which are capable of execution, and would be required to be executed by the authorities if not suspended. In certain situations the order of conviction can be executable in the sense that it will lead to the disqualification for example under Section 267 of the Companies Act from being appointed or to continue as a Director incharge of the affairs of a Company. Therefore when an appeal is preferred under Section 374 of the Code, the appeal is against both the conviction and sentence and therefore there is no reason to place a narrow interpretation on Section 389 (1) of the Code not to extend it to an order of conviction. In a fit case, if the High Court feels satisfied that the order of conviction needs to be suspended post conviction so that the convicted person does not suffer from a certain was 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 eventually.
Whether trial vitiated due to subsequent observations of the Supreme Court.
56. Regarding the argument raised by the learned counsel for the appellant that the trial is vitiated as it was done by an incompetent Court; in Gokaraju Ranga Raju Versus State of Andhra Pradesh 1981 (13) SCC 132, the Supreme Court was considering the "de facto doctrine". It was a case where while criminal revision and appeals were pending before the High Court, the Supreme Court quashed the appointment of the Sessions Judges, who had heard those cases, on the ground that their appointment was in violation of Article 233 of the Constitution. Thereupon, it was argued before the High Court that the judgements rendered by the judges were void and required to be set aside. The High Court rejected the contention. Dismissing the appeal the Supreme Court held that- "a Judge, De facto is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority., Even though his appointment is defective And may later be found to be so. Whatever be the defect of his title to the office, judgements pronounced by him or acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgements pronounced or acts done by a judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. There is yet another rule also based on public policy. The defective appointment of a de facto judge may be questioned directly in a proceeding to which he be a party, but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence to the judge except as a judge. Hence the rule against collateral attack of validity of judicial appointments. To question a judge's appointment in an appeal against the judgement is such a collected attack. Therefore it is not possible to accept the contention is that a Trial by a Sessions judge who was appointed in violation of Article 233 was not a Trial by a Sessions Judge duly appointed to exercise jurisdiction under Section 9 Cr.P.C. and that the Fundamental Right of the appellants under Article 21 was violated as their liberty was being taken away otherwise than in accordance with the procedure established by law. It would be a different matter if the Constitution of the Court itself is under challenge, but that is not the case here."
57. The Supreme Court in the said judgement referred to several English and American authorities right from 1431. The Supreme Court referred to observations made by Lord Denning relying upon American cases where observation was made that "where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as the validity of his acts are concerned. It is enough that he is clothed with the insignia of the office, And exercises its powers and functions - - - the official acts of such persons are recognised as valid on the grounds of public policy, and for protection of those having official business to transact."
58. In State of U.P. versus Rafiq Uddin and others 1987 Supplement SCC 401, the Supreme Court was considering the appointment of certain judges in violation of U.P. Civil Service Judicial Branch Rules 1951. The Supreme Court observed that even though they had not been found suitable for appointment according to the norms fixed by the Public Service Commission, they had been working in the Judicial Service during all these years and some of them had been promoted and they had performed their functions and duties as de facto judicial officers. The Supreme Court relied upon judgement rendered in Gokaraju (supra) where it has been observed "a person who is ineligible to judgeship, but who has nevertheless been duly appointed and who exercises the powers and duties of the office of is a de facto judge, he acts validly until he is properly removed. Judgement and orders of a de facto judge cannot be challenged on the ground of his ineligibility for appointment."
59. The argument of the Learned Counsel for the appellant that his Trial was vitiated on the ground that it had been held by an incompetent Court cannot also be countenanced As is evident from the observations made by the Supreme Court in the case of Gokaraju (supra) and Rafiq Uddin (supra).
Joint Trial, if permissible
60. Regarding the argument raised by learned Senior Counsel for the appellant about joint Trial being impermissible, in a recent decision of Nasib Singh versus State of Punjab decided on 8.10.2021 reported in 2021 SCC Online SC 924; the Supreme Court was considering the question as to whether non-joinder of Trials in two FIRs itself had caused a miscarriage of justice, prejudicing the rights of the accused or the case of the prosecution such that it necessitated the order of the High Court directing a reTrial after clubbing the proceedings arising out of both the FIRs. The Supreme Court considered the judicial pronouncements on the issue as well as the statutory provisions relating to framing and joinder of charges, and after referring to Section 218, 219, 220, 221 and 223 of the Code of Criminal Procedure. The Supreme Court observed that the High Court ought not to set aside the conviction of the accused on the ground that inter-alia the joint Trial of two or more offences committed by each of them is illegal, the Supreme Court referred to a three-judge bench decision regarding Section 239 (d) of the old Code which corresponds to Section 223 (d) of the new Code and juxtaposing it with the provisions of Section 225 (1)of the old Code which is Section 219 (1) of the new Code . In that case the respondents along with two others were tried together for offences under the Penal Code. The High Court had set aside the conviction on the ground that joint Trial of two or more offences committed by each of them was illegal. The Bench observed that the phrase "offence committed in the course of same transaction "would mean offences that are committed in proximity of time or place or unity of purpose and design. It quoted paragraph 25 of the judgement in State of Andhra Pradesh versus Cheemlapati GaneshVara Rao AIR 1963 Supreme Court 1850, thus :- "....indeed it would be always difficult to define precisely what the expression means. Whether a "transaction" can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be difficult task to undertake a definition of that which the legislature has deliberately left undefined. We have not come across a single decision of any Court which has embarked upon the difficult task of defining the expression. But it is generally thought that where there is a proximity of time or place or unity of purpose and design or continuity of action in respect of a series of facts, it may be possible to infer that they form part of the same series of acts, it may be possible to infer that they form part of the same transaction. It is, however not necessary that every one of these elements should coexist for a transaction to be regarded as the same. But if several acts committed by a person show unity of purpose or design that would be a strong circumstance to indicate that those acts form part of the "same transaction". The connection between a series of acts seems to us to be an essential ingredient of those acts to constitute the same transaction and, therefore, the mere absence of the words "so connected together as to form same transaction" in Section 239 would make little difference. Now a transaction may consist of an isolated act or may consist of a series of acts. The series of acts which constitute a transaction must of necessity be connected with one another and if some of them stand out independently they would not form part of the same transaction but would constitute a different transaction or transactions. Therefore, even if the expression same transaction alone has been used in Section 235 it would have meant a transaction consisting of either a single act or a series of connected acts. The expression "same transaction "occurring in clause (d) of Section 239 as well as that occurring in Section 235 (1) ought to be given the same meaning according to the normal rule of construction of statutes - - -".
61. In Nasib Singh (supra), the Bench observed that holding a separate Trial is the rule and a joint Trial is the exception. However, in case the accused persons commit different offences forming part of the same transaction, a joint Trial would be the rule unless it is proved that joint Trial would cause difficulty:
para 28 - - - "no doubt, as has been rightly pointed out in this case, separate Trial is the normal rule and joint Trial is an exception, but while this principle is easy to appreciate and follow where one person alone is accused and the interaction or intervention of the acts of more persons than one does not come in, it would, where the same act is committed by several persons, be not only inconvenient but injudicious to try all the several persons separately. This would lead to unnecessary multiplicity of Trials involving avoidable inconvenience to the witnesses and avoidable expenditure of public time and money. No corresponding advantage can be gained by the accused persons by following the procedure of separate Trials. Where, however, several offences are alleged to have been committed by several accused persons, it may be more reasonable to follow the normal role of separate Trials. But here, again, if those offences are alleged not to be wholly unconnected but as forming part of the same transaction, the only consideration that will justify separate Trials would be the embarrassment or difficulty caused to the accused persons in defending themselves."
(emphasis supplied)
62. The Supreme Court thereafter held that the High Court was wrong in setting aside the order of conviction on the ground of misjoinder of parties. It was observed that the Court could have set aside the order of conviction only on the ground that such misjoinder caused a failure of justice to the accused and not merely because there is a misjoinder of parties:
para 31 ...."even if we were to assume that there has been a misjoinder of charges in violation of the provisions of Section 233 to 239 of the Code, the High Court was incompetent to set aside the conviction of the respondents without coming to the definite conclusion that misjoinder had occasioned failure of justice. This decision completely meets the argument based upon Dawson case (1961 All England reporter 558).Merely because the accused persons are charged with a large number of offences and convicted at the Trial, the conviction cannot be set aside by the appellate Court unless it in fact comes to the conclusion that the accused persons were embarrassed in their defence with the result that there was a failure of justice. For all these reasons we cannot accept the argument of the learned counsel on the ground of mis-joinder of charges and multiplicity of charges."
This interpretation placed on Section 223(d) of the old Code was relied upon by the Supreme Court in R Dinesh Kumar versus State 2015 (7) SCC 497.
63. The Court also observed in Chandrabhal versus State of U.P. 1971(3) SCC 983, a case where the appellant was convicted of an offence under Section 302, while the two co-accused charged with offences under Section 302 read with Section 34 of the Penal Code were acquitted, that "although Section 233 embodies the general mandatory rule providing for a separate charge for every distinct offence and for a separate Trial for every such charge, the broad object underlying the general rule seems to be to give to the accused a notice of the precise accusation and to save him from being embarrassed in his defence by the confusion which is likely to result from lumping together in a single charge distinct offences, and from combining several charges at one Trial. There are however, exceptions to this general rule and they are found in Section 234, 235, 236 and 239. These exceptions embrace cases in which one Trial for more than one offence is not considered likely to embarrass or prejudice the accused in his defence. The matter of joinder of charges is however in the general discretion of the Court and the principal consideration controlling the judicial exercise of this discretion should be to avoid embarrassment to the defence by joinder of charges."
64. The Supreme Court observed further that the matter was required to be considered by the Trial Court at the beginning of the Trial and is not to be determined on the basis of the result of the Trial. The Court further observed that its attention was not drawn to any material on record suggesting that prejudice has been caused to the appellant as a result of a separate Trial.
65. The Supreme Court in Nasib Singh (supra) summarised the Principles laid down in Chandrabhal thus-"A separate Trial is not contrary to law even if a joint Trial for the offences along with other offences is permissible. (1) The possibility of a joint Trial has to be decided at the beginning of the Trial and not on the basis of the result of the Trial; (2) and the true test is whether any prejudice has been sustained as a result of a separate Trial. In other words, reTrial with the direction of a joint Trial would be ordered only if there is a failure of justice."
66. The Supreme Court in paragraph 39 summarised the principles on the basis of decisions of the Court on joint Trials and Separate Trials and observed thus.
Para 39 "From the decisions of this Court on joint Trial and separate Trials, the following principles can be formulated:
1) Section 218 provides that separate Trials will be conducted for distinct offences alleged to be committed by a person. Section 219-221 provide exceptions to this general rule. If a person falls under these exceptions, then a joint Trial for the offences, which a person is charged with maybe conducted. Similarly, under Section 223, a joint Trial may be held for persons charged with different offences, if any of the clauses in the provision are separately or in a combination satisfied;
2),while applying the principles enunciated in Sections 218-223 on conducting joint and separate Trials, the Trial Court should apply a two pronged test, namely, (i) whether conducting a joint/separate Trial will prejudice the defence of the accused; and/or (ii) whether conducting a joint/separate Trial would cause judicial delay.
(3)the possibility of conducting a joint Trial will have to be determined at the beginning of the Trial and not after the Trial based on the result of the Trial. The appellate Court may determine the validity of the argument that there ought to have been a separate/joint Trial only based on whether the Trial had prejudiced the rights of the accused or the Prosecutrix ;
(4)since the provisions which engraft an exception use the phrase "may "with reference to conducting a joint Trial, a separate Trial is usually not contrary to law even if a joint Trial could be conducted, unless proven to cause a miscarriage of justice; and A conviction or acquittal of the accused cannot be set aside on the mere ground that there was a possibility of a joint or a separate Trial. To set aside the order of conviction or acquittal, it must be proved that Rights of the parties were prejudiced because of the joint or separate Trial, as the case may be".
67. The Supreme Court in Nasib Singh (supra) further observed in paragraph 44 that the observations of the Supreme Court in Chandrabhal were reiterated in State of M. P. Vs. Bhooraji 2001 (7) SCC 679; and observed that a de novo Trial should be a matter of last resort only when such a course of action becomes "so desperate and indisputable". Moreover, the Court emphasised that the appellate Court would do so in an extreme exigency to avert the failure of justice. While exercising its power as a Court of appeal under Section 386 Code of Criminal Procedure, the Court has to be conscious of the fundamental principle that the power to order a de novo Trial or "that the accused to be retried or committed for Trial" is of an exceptional nature which is intended to prevent a miscarriage of justice. The same principle is in fact embodied in Section 465(1) of the Code of Criminal Procedure.
68. Section 465 of the Code provides that-
"465. Finding or sentence when reversible by reason of error, omission or irregularity - (1) subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, Proclamation, order, judgement or other proceedings, before or during Trial ,or in any enquiry or other proceedings under this Code, or any error, or irregularity, in any sanction for prosecution, unless in the opinion of the Court, a failure of justice has in fact been occasioned thereby.
69. The learned counsel for the petitioner has argued also on the ground that the Trial is vitiated because it has been conducted and judgement delivered by Smt. Pooja Singh IIIrd ADJ who was not the designated Court/Special Sessions Court to try cases relating to MPs and MLAs in district Faizabad. This Court had summoned a report from the District Judge concerned on 29.11.2021. On the basis of such report/comments this Court had passed an order on 30.11.2021. Which is being quoted here in below: -
"In pursuance of the order passed by me earlier the District Judge, Faizabad has sent a report dated 30.11.2021 which has been placed by the office before the Court today itself.
In this report, it has come out that Smt. Pooja Singh was initially Additional District and Sessions Judge, Court No.1 and she was entrusted/designated to hear matters regarding MPs and MLAs. Later on, however due to certain intervening circumstances she became Court No.3 but the High Court sent a letter No. 6171 dated 03.06.2021 wherein it was stated that officers who were empowered to try the criminal cases pending against the MPs and MLAs will try the said cases as long as they were posted in the concerned district. Therefore, some twenty cases which were being heard by Smt. Pooja Singh as designated District & Sessions Judge/Special Court for MPs and MLAs would assigned to her even though she became Court no.3 in Faizabad Judgeship. A list of such matters has also been filed alongwith the report as also the copy of letter dated 03.06.2021 sent by the Joint Registrar,Judicial(Services) High Court of the Allahabad to all District Judges concerned. The question of lack of jurisdiction is thus addressed insofar as Trial of the petitioner by Additional District and Sessions Judge, Smt. Pooja Singh is concerned.
Put up tomorrow i.e. 01.12.2021 at 02:15 PM."
The controversy regarding The IIIrd ADJ and not the Ist ADJ At Faizabad hearing and deciding the Special Case No.3012/2018 thus stands settled.
70. Having considered the arguments raised by the learned counsel for the appellant against giving hearing to the private counsel appearing on behalf of the Objectors, this Court is of the considered opinion that such Objectors can only be allowed to interject under the supervision of AGA/ Public prosecutor. The State having filed objections wherein the criminal history of the appellant has been given in detail in the form of a chart, the same can be considered by this Court even if it chooses to ignore the affidavits filed in support of the objections by the Objector 1 and 2. Practically the same objections have been taken by both the Objectors to the grant of bail to the appellant. They have referred to his criminal background and the fact that several criminal cases are pending against him in various Courts in various districts such as Jaunpur, Sonebhadra, Ayodhya and others. They have also referred to the Appellant managing to get a firearm licence on a fake identity proof and residential address. They have also referred to the appellant managing to get bail on the basis of fake identity proof and fake residential address. It has been submitted by the learned counsel for the appellant that the appellant has been acquitted, Or discharged Or the proceedings have been dropped or final report has been submitted in almost all such cases, but the Learned counsel for the appellant has failed to point out that at least two cases which are still pending in the Court at Jaunpur and Sonebhadra regarding theft of Court records and murder. These criminal antecedents form a necessary fact to be looked into at the time of grant of bail to the appellant post Conviction by the Learned Trial Court.
71. The learned counsel for the appellant has argued on the basis of order passed by the Supreme Court on 24.11.2021 in Mohammad Azam Khan's case whose Writ petitions were taken up along with the PIL by Ashwini Kumar Upadhyay (supra) that the observations of the Supreme Court have nullified and expunged the Trials that have been held by Sessions Courts in cases triable by Magistrates also does not appeal to reason as the Supreme Court has not mentioned in its order dated 24 November 2021 anything about cases where Trials have been concluded and judgement pronounced. Such Trials/judgements must be governed by the law settled by the Supreme Court in the case of Gokaraju (supra) and Rafiq Uddin (supra). At the time when Trial was being conducted by the Sessions Court a valid notification of the Allahabad High Court was in existence transferring the case to it. Subsequent observations of the Supreme Court regarding misinterpretation of its orders by the High Court would not nullify the judgement Under appeal before this Court.
72. The learned counsel for the appellant has raised a challenge to the judgement under appeal on the ground That a joint Trial was held. In view of the law settled by the Supreme Court in the case of Nasib Singh versus State of Punjab 2021 SCConline Supreme Court 924 a joint Trial could have been held As the college where the three accused were studying was one, its Principal had lodged the FIR regarding similar interpolations in marksheets by the three accused on the basis of same record of results maintained by it in its ordinary course of business and the very same evidence was to be produced to bring home the charge in the case of each of the accused and the prosecution witnesses who were examined to prove the charges were also the same.
73. This Court having considered the law laid down by the Supreme Court for considering applications for suspension of sentence and conviction pending appeals by the appellant does not find merit in the submissions made by the learned counsel for the appellant that he will suffer irreparable loss if his conviction is not stayed as he will be disqualified under Section 8(3) of the Representation of Peoples Act for a period of six years from the date of his conviction till his release from participating in elections. The Supreme Court has time and again observed the need to maintain probity in public life. This Court cannot countenance the conduct of the appellant as brought out by the facts mentioned hereinabove in taking the Authorities for a ride by submitting fake proof of identity and residence for procuring an arms license, and in taking the Courts for a ride in submitting bail papers and sureties on the basis of fake residential address and also removing Court records of criminal case pending against him.
74. The application under Section 389 (1) of the Cr.P.C. therefore stands rejected.
Order Date :- 13.12.2021 Rahul/Darpan Sharma/PAL [Justice Sangeeta Chandra]