Chattisgarh High Court
Mukesh Goswami vs State Of Chhattisgarh on 17 October, 2023
1
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Sheet
CRA No. 312 of 2021
1 - Mukesh Goswami S/o Markandey Kumar Goswami Aged About 38 Years
R/o Darripara, Ambikapur, P.S.- Ambikapur, District- Surguja, Chhattisgarh
---- Appellant
Versus
1 - State Of Chhattisgarh Through P. S. District Magistrate District Surguja Chhattisgarh
----Respondent
17/10/2023 Shri Shakti Raj Sinha, counsel for the appellant/s.
Shri Alok Nigam, Govt. Adv. for the State.
Heard on (I.A.No.2) - an application for stay of conviction recorded vide impugned judgment dated 21/01/2021.
Learned counsel for the appellant submits that the appellant- Mukesh Goswami, vide its judgment dated 21/01/2021 passed by the First Additional Sessions Judge, Ambikapur, Sarguja (CG) in Sessions Trial No.52/2014 has been convicted for an offence punishable under Section 25 of the Arms Act, 1959 and sentenced to undergo 3 years R.I. and pay Rs.10,000/- fine (in default of payment of fine, 3 months R.I.). He submits that aggrieved by the impugned judgment of conviction and order of sentence, the appellant preferred the instant appeal. This Court, vide its order dated 16/03/2021 allowed the application under Section 389 of the CrPC, suspended the sentence imposed upon him and directed him to be released on bail on his furnishing personal bond of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the trial Court. He further submits that in compliance with the order dated 16/03/2021, the appellant was released on bail and the appeal remained pending final disposal. He further submits that in the meantime, election for the legislative assembly for State of Chhattisgarh has been announced and the petitioner is willing to contest the election from 2 Legislative Assembly, Ambikapur as an independent candidate and his intention can be gathered from the pamphlet appended to the application for stay of conviction. He submits that contesting election is the fundamental right of a citizen but in view of Section 8 (3) of the Representation of the People Act, 1951 (for short 'Act of 1951'), since the sentence imposed on the appellant is of 3 years, he would not be able to fill up the nomination form as he would be disqualified to contest the election. He submits that the Hon'ble Supreme Court time and again has held that the appellate Courts have the power to suspend the sentence under Section 389 of CrPC. He goes on to submit that if the conviction of the appellant is not stayed, it would cause irreparable loss and in the event the appeal is allowed and he is acquitted of the charges, his right to contest the election would survive and in the intervening period because of the conviction, he will lose his valuable right which would be irreversible in nature. In order to fortify his submission, he places reliance on the decision of the Hon'ble Supreme Court in the case of Ravikant S. Patil v. Sarvabhouma S. Bagali, 2007 (1) SCC 673 and in the case of Lily Thomas v. Union of India and ors and connected matters, (2013) 7 SCC 653, Navjot Singh Sidhu Vs. State of Punjab and another reported in (2007) 2 SCC 574. He also places reliance in the case of Lok Prahari through its General Secretary, S.N.Shukla v. Election Commission of India and ors., 2018 (18) SCC 114. He further places reliance on the decision of the Hon'ble Supreme Court in the case of Rahul Gandhi v. Purnesh Ishwarbhai Modi and anr., 2023 LiveLaw (SC) 598 and contends that facts of that case with regard to the election to the parliament, and the appellant in this case wants to contest the election to the Legislative Assembly, hence the conviction imposed on him may be stayed. He further submits that in that case, the punishment was of 2 years which was the maximum punishment but despite that Hon'ble Supreme Court was pleased to stay the conviction. However, in the case in hand, the minimum 3 sentence under Section 25 of the Arms Act is imprisonment for 1 year and the appellant has been imposed with a maximum sentence of 3 years.
He submits that it is not going to cause any prejudice to the respondent/State as the appellant's sentence has already been suspended by this Court and he just wants to contest the election irrespective of the result. He prays that his right to contest the election can not be taken away just because of his conviction.
Shri Alok Nigam, Govt. Advocate opposes the submissions made by learned counsel for appellant and submits that though the appellant has right to contest the election, that right is not absolute but subject to certain riders as provided under the Act of 1951. He further submits that no irreparable loss would be caused to the appellant if he is not permitted to contest the election. He submits that in order to seek the relief of stay of conviction, the appellant is required to show the exceptional circumstances as to what irreparable loss would be caused if he is not allowed to contest the election. In the case in hand, the circumstances shown by appellant do not cause within the purview of exceptional circumstances for staying the conviction. He places reliance upon the judgment of Hon'ble Supreme Court in cases of State of Maharshtra Vs. Gajanan and another reported in (2003) 12 SCC 432, K. C. Sareen Vs. CBI. Chandigarh reported in (2001) 6 SCC 584, Union of India Vs. Atar Singh and another reported in (2003) 12 SCC 434 and State of Haryana Vs. Hasmat reported in (2004) 6 SCC 175 and also in cases of Ravikant S. Patil (supra) and in case of Lok Prahari (Supra) as earlier cited by Mr. Sinha. He goes on to submit that apart from the present case, the appellant has five more criminal antecedents which goes to show his conduct. He further submits that purpose of keeping such persons away from contesting the election is just the induction of people having clean image in the society. Thus 4 there is no merit in the application and the same is liable to be rejected.
In rejoinder, Shri Sinha submits that the criminal antecedents which have been cited by State, would not have any bearing on the disqualification of the appellant. In four cases the appellant has been acquitted and in one case charge-sheet has not been filed and simply because the appellant has some criminal antecedents, it would not be ipso facto a reason for determining the fact that he is a notorious criminal. He further submits that pendency of criminal case or existence of any criminal antecedent would not ipso facto be a reason for disqualification. He submits that if the conviction is not stayed, the valuable right of the appellant to contest election would be hampered and irreparable loss would be caused to him. Though Shri Sinha tried to justify that the maximum sentence is awarded to the appellant and minimum sentence is one year, therefore, the application should be allowed.
Heard learned counsel for the parties and considered their rival submissions.
The issue involved in this case is whether on the ground that the appellant has shown his willingness to contest the election and for that purposes, his conviction is required to be stayed. The law with regard to power of this Court to stay the conviction is no longer res integra. The Hon'ble Supreme Court has time and again reiterated the legal preposition that the appellate Court can stay the conviction in exercise of power under Section 389 of CrPC. The issue involved is this case is if the conviction of the appellant is not stayed, what would be ramification in the society of such stay.
The Hon'ble Supreme Court in case of K. C. Sareen (Supra) in Para 11 has observed as under:-
5"11.The legal position, therefore, is this: Though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389(1) of the Code, its exercise should be limited to very exceptional cases. Merely because the convicted person files an appeal in challenge of the conviction the court should not suspend the operation of the order of conviction. The court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance. It is in the light of the above legal position that we have to examine the question as to what should be the position when a public servant is convicted of an offence under the PC Act. No doubt when the appellate court admits the appeal filed in challenge of the conviction and sentence for the offence under the PC Act, the superior court should normally suspend the sentence of imprisonment until disposal of the appeal, because refusal thereof would render the very appeal otiose unless such appeal could be heard soon after the filing of the appeal. But suspension of conviction of the offence under the PC Act, de hors the sentence of imprisonment as a sequel thereto, is a different matter".
The Hon'ble Supreme Court in case of Hasmat (Supra) in Para-6 has observed as under:-
"6.Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the Appellate Court to record reasons in writing for ordering suspension of execution of the sentence or order appealed. If he is in confinement, the said 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".
On perusal of record available, the appellant has been convicted for an offence punishable under Section 25 of the Arms Act and has been sentenced for rigorous imprisonment for 3 years. Though the suspension has been granted yet looking to the facts and circumstances of the case, he never prayed for stay of conviction 6 earlier. This Court while allowing the application for stay of conviction has also to see whether the irreparable loss is caused or if stay is granted what would be ramification of the same upon the society.
The reply filed by the State indicates that the appellant has earlier been tried for various offences, however as per counsel for the appellant he was acquitted. The right to contest election of course is available to the appellant, however, that right will be subject to certain riders provided under the Act of 1951. The case law relied upon by learned counsel for the appellant in case of Navjot Singh Sidhu (Supra) is on the fact that in that case petitioner was the sitting member of Parliament and after his conviction, he resigned from his membership and thereafter moved an application for stay of conviction on the ground that he wanted to contest again.
The power to impose the sentence is in the domain of the trial Court and for that matter the appellate Court. The power which has been exercised by the trial Court while imposing the maximum sentence cannot be looked into at this stage. Findings with regard to conviction goes to show that the power has been exercised by the learned Court is based upon the facts available in the case in hand, therefore, the submission with regard to minimum sentence is rejected.
In the case in hand, the appellant admittedly is not a member of parliament or legislative assembly. He simply wants to contest the election as an independent candidate. The case of Rahul Gandhi (Supra) relied by Shri Sinha, is also distinguishable from the facts of present case. In the case of Rahul Gandhi (Supra), the petitioner was convicted for an offence punishable under Sections 499 of IPC for 2 years and he was also a sitting member of parliament. In both the aforementioned cases, as the petitioners were already the members of parliament, the Supreme Court granted stay of 7 conviction so that their constituency did not fall vacant. This being the position the cases sought to be relied upon are distinguishable on facts and therefore, would not be of much help to the appellant in this case.
However, not even a single constituent of the circumstances being an exceptional one is present in this case to indicate as to what irreparable loss would be caused to the appellant in case he is kept away from contesting the election in the impending assembly election by dint of his conviction under Section 25 of the Arms Act. Accordingly, this Court is not satisfied with the grounds urged by the appellant entailing stay of his conviction and being so, the application I.A.No. 2 being devoid of any substance is liable to be and is hereby rejected.
Sd/-
(Sachin Singh Rajput) Judge Deepti/Parul