Rajasthan High Court - Jaipur
Srikrishan And Ors vs State on 21 October, 2009
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR
ORDER
JAIPAL vs. STATE OF RAJ.
S.B.Criminal Misc. Stay Application No. 681 of 2008 in S.B.Criminal Appeal No. 255 of 2008 under Section 389 Cr.P.C. for staying judgment of conviction dated 1.3.2008 passed by Additional Sessions Judge (Fast Track) Tijara, Distt. Alwar in Sessions Case No. 126 of 2007 ( 62/2004) convicting the accused applicant for offence under sections 148, 323, 325 and 307 IPC and sentencing him for Two years RI, One Year RI, Three years RI and fine of Rs. 1,000, in default two months RI and Six years RI and fine of Rs. 5000/-, in default of fine two months RI respectively. All t6he sentences were ordered to run concurrently.
REPORTABLE
Date of Order : October 21, 2009
PRESENT
HONBLE MR. JUSTICE MAHESH CHANDRA SHARMA
Mr. Ashish Sharma for the applicant.
Mr. Pradeep Shrimal, Public Prosecutors.
BY THE COURT :
The applicant Jaipal filed this criminal misc. stay application No. 681 of 2008 in S.B.Criminal Appeal No. 255 of 2008 under Section 389 Cr.P.C. for staying judgment of conviction dated 1.3.2008 passed by Additional Sessions Judge (Fast Track) Tijara, Distt. Alwar in Sessions Case No. 126 of 2007 ( 62/2004) convicting the accused applicant for offence under sections 148, 323, 325 and 307 IPC and sentencing him for Two years RI, One Year RI, Three years RI and fine of Rs. 1,000, in default two months RI and Six years RI and fine of Rs. 5000/-, in default of fine two months RI respectively. All the sentences were ordered to run concurrently. The appeal filed by the applicant along with other co-appellants was admitted by this court on March 12, 2008. Along with the appeal No.255 of 2008, the applicant and the co-applicants filed criminal misc. suspension of sentence application, which was registered as Application No.288 of 2008. Prayer clause in the application reads as under :
It is, therefore, humbly prayed that your Lordships may very graciously be pleased to accept this application for suspension of sentence and release the accused petitioners on bail during the pendency of the appeal and the sentence awarded to the accused petitioners may kindly be suspended till the disposal of this appeal or any appropriate order which this Hon'ble Court may deem fit in favour of the accused petitioners may kindly be passed in the facts and circumstances of this case.
On the application for suspension of sentence this court passed following order on March 26, 2008 :
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?????????? ?? ?? ?? ???????? ??????? ???????? ???? ?? ???? 311 (3) ?? ??? ?? ?????? ???? ???????? ?? ?? ????? ???? ??? ?? ?? ?????????? ????????? ?? ????? ????? ?? ?? ?? ?? ??????? ???????? ??? ??? ???? ?????? ?? ??????? ???? ??? ??? ?????????? ?? ???????? ?? ???? ?? ???????? ?? ?????? ???? ??????? ????? ????
??: ????????-?????????? ??????????, ??????, ??????, ??????? ??? ????? ??????? ??????, ???? ????, ?????? ??????, ????? ???? ??????? ???? ???? ?? ??? ???? ?????????, ????? ????? , ?????? ?? ???? ?????? ?????? 126/2007 ( 62/2004) ??? ????? ?????? ?????? 1.3.2008 ?? ?????? ?? ??? ??? ?? ???? ?? ???????? ?? ?????? ??? ???? ?? ???? ?? ???? ?? ???? ???? ?? ?? ?? ???? ???? ????? ?? ???? ?? ????? ?? ???????? ??? ?????? ?????? ???? ????? ?? ???? ?? ?? ????? ?????? ???????? ?? ???????? ?? ??? ?? ?????? ????? ?? ?? ?? ???????? ?? ????? ?????? 30.4.2008 ?? ??? ???? ?????? ?????? ???? ?? ??????? ??????
Now filing the present application No. 681 of 2008, the applicant Jaipal prayed as under :
It is, therefore, most humbly prayed that this Hon'ble Court may very graciously be pleased to allow this application. The impugned judgment of conviction may kindly be stayed during pendency of the annexed appeal before this Hon'ble Court.
Any other appropriate orders/ directions which this Hon'ble Court deem just and proper in the facts and circumstances of the present case, may kindly be passed in favour of the humble appellant applicant.
This application was presented before this Court on July 24, 2008. One way or the other the application could not be heard. Arguments on this application were concluded on August 31, 2009.
Now the core question to be considered in this case is that pending the appeal filed by the applicant before this court, the judgment of conviction dated March 1, 2008 passed bythe Addl. Sessions Judge (Fast Track) Tijara convicting the accused applicant for offence under sections 148, 323, 325 and 307 IPC can be stayed by this court to enable the appellant applicant to contest the forthcoming elections.
In the application the applicant given out that the complainant party is having grudge against the accused applicant and his family members due to political rivalry and land dispute. The members of the complainant party opened attack upon the members of the accused party and the members of the accused party including the appellant applicant sustained injuries on their person. In such circumstances acting in the right of private defence to their person, some of the members of the accused party inflicted some injuries on the persons of the complainant party and in such circumstances the complainant party lodged the report against the members of the accused party at the police Station Bhiwadi, district Alwar on 6.11.2003. On the basis of the report submitted by the complainant Dhani Ram the police registered a case for offence under sections 323, 341 and 143 IPC vide FIR No. 290/2003. The police after investigation filed challan against five accused persons including the applicant for offence under sections 147, 148, 323, 341, 325, 307 and 447 IPC and all of them faced trial. The trial court by the judgment of conviction and order of sentence dated 11.3.2008 convicted all the persons including the accused applicant under sections 148, 323, 325 and 307 IPC. In the application the accused applicant took ground that this Court vide order 26..3.2008 has been pleased to suspend execution of sentence imposed upon the accused applicant and to release him on bail. The applicant is an active politician and is an active member of a political party of national level. He is willing and going to contest election of the forthcoming Parliament/ Legislative Assembly elections. Due to conviction of the accused applicant in the criminal case,he will not be permitted to contest the election of any public office and thus, the judgment of conviction will come in the way of the applicant in contesting elections. It is in the interest of justice to stay convcition against the applicant. The applicant further stated that if the conviction against the applicant is not stayed, the very purpose of filing the criminal appeal will be frustrated and the applicant will suffer irreparable loss. Looking to the pendency of cases of similar nature it is clear that final hearing and disposal of the above mentioend appeal will take a considerable long time. This Court and the Apex Court in so many cases have stayed the judgment of conviction and thus in view of Article 14 of the Constitution of India, it is in the interest of justice to give similar relief to the accused applicant. The appeal under section 374 Cr.P.C. filed by the accused applicant is a statutory remedy provided by the statute and the conclusion arrived at by this court will have a relevant and bearing upon the conclusions arrived at by the trial court. The applicant prayed that in view of the law laid down by the Apex Court in Commissioner of Income Tax Mumbai vs. Bhupen Champak Lal Dalal (AIR 2001 SC 1096) it is in the interest of justice to stay conviction of the applicant. This Court in the case of Om Prakash and another vs. State of Rajasthan, S.B.Criminal Appeal No. 899 of 2001 was pleased to consider the provisions of section 389 (1) Cr.P.c. and the judgments of Division Bench of this Court and also the judgments of Apex Court in the case of Smt. Akhtari Bi vs. State of M.P. (JT 2001 (4) SC 40) and after considering the scope of section 389 (1) and the observations of the courts, was pleased to stay conviction of the accused applicant in the appeal. It is in the interest of justice to stay the conviction of the present applicant. The applicant further averred that in view of the pronouncement of the Apex Court in the case of Navjot Singh Siddu, conviction can be stayed for the purpose of contesting election of a public office. It is in the interest of justice to stay conviction against the applicant for his contesting the forthcoming elections.
The learned Public Prosecutor opposed the application filed by the applicant and prayed that the trial court on the basis of the evidence led by the prosecution found the accused applicant guilty of the various offences including offence under section 307 IPC for which he has been sentenced to six years RI with fine of Rs. 5,000 including four persons, who are also his real brothers. In these circumstances the learned Public Prosecutor argued that the accused applicant has been given the benefit of section 389 Cr.P.C. and granted bail. The bail granted to him should not be misused any further for getting further relief of staying the conviction order of the trial court. In the case of Navjot Siddu, the Apex Court on the basis of the finding that the applicant was acquitted by the trial court and convicted by the High Court, granted him the relief of stay of conviction. The applicant in that case was Member of Parliament at the time of passing the judgment of conviction bythe High Court and immediately he resigned from the post of Member of Parliament and further in order to contest the election of Member of Parliament he filed the application for stay of the conviction passed by the High Court before the Apex Court. The learned Public Prosecutor prayed that the circumstances in the case of Navjot siddu were different. The applicant filed the application on July 24, 2008 and now the elections to the Assembly and for Parliament are over and at present there is no such elections pending to be contested by the applicant. As such there is no such urgency of dealing with the application of the applicant for stay of conviction at this stage and the application may be rejected. The applicant could have made a prayer at the time of dealing with his application for bail, but no such prayer was made by him at that time and after the elections are over the prayer of the applicant should not be allowed at this stage.
Before proceeding further it is necessary to have a look at the provisions of Section 389 of the Code of Criminal Procedure ( in short Code ). Section 389 of the Code empowers the Court to suspend the sentence pending the appeal and for release of the appellant on bail. Section 389 so far relevant reads as follows:
"389. Suspension of sentence pending the appeal; release of appellant on bail - (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that he execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.
Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:
Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.
(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by convicted person to a Court subordinate thereto.
(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall, -
(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or
(ii) where the offence of which such person has been convicted is a baliable one, and he is on bail, order that the convicted person be released on bail unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub- section (1), and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.
(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced."
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 against. 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.
Section 7(b) and Sub- sections (3) and (4) of Section 8 of the Representation of the People Act, 1951, which have a bearing on controversy in hand read as under:-
"7(b) "disqualified" means disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State."
"8(3) A person convicted of any offence and sentenced to imprisonment for not less than two years (other than any offence referred to in sub-section (1) or sub-section (2)) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.
(4) Notwithstanding anything in sub-section (1), sub- section (2) and sub-section (3) a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court."
By virtue of Sub-section (3) of Section 8 of the Act the applicant shall be disqualified as he has been sentenced to 6 years R.I. The Apex Court in Gajraj Yadav Versus Rajendra Singh @ Deena & Ors. (JT 2008 (11)SC 643 ) held in paras 11,12 and 13 as under : .
11. The mere fact that during the trial, they were granted bail and there was no allegation of misuse of liberty, is really not of much significance. The effect of bail granted during trial looses significance when on completion of trial, the accused persons have been found guilty. The 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 and grant of bail. What really was necessary to be considered by the High Court is whether reasons existed to suspend the execution of sentence and thereafter grant bail. The High Court does not seem to have kept the correct principle in view.
12. In Vijay Kumar v. Narendra and others (2002 (9) SCC 364) and Ramji Prasad v. Rattan Kumar Jaiswal and another (2002 (9) SCC 366), it was held by this Court that in cases involving conviction under Section 302 IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. The impugned order of the High Court does not meet the requirement. In Vijay Kumar's case (supra) it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 IPC, the Court should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder. These aspects have not been considered by the High Court, while passing the impugned order.
The challenge before the Apex Court was the order passed by a Division Bench of the Rajasthan High Court directing suspension of sentence awarded tothe respondents under sections 148 IPC, 325/149 IPC to suffer One year Six months RI, Two years RI and to pay a fine of Rs.500/-, in default of payment of fine, to further undergo RI for three months, 324/149 IPC One year RI and to pay a fine of Rs.200/-, in default of payment of fine, to further undergo RI for two months, 323/149 IPC Six months RI and to pay a fine of Rs.200/-, in default of payment of fine, to further undergo RI for two months,427 IPC Six months RI and to pay a fine of Rs.200/- in dafult of payment of fine, to further undergo RI for two months, 455/149 IPC Three years RI and to pay a fine of Rs.500/-, in default of payment of fine, to further undergo RI for six months.and u/s 302/149 IPC Imprisonment for life and to pay a fine of Rs.10000/-, in default of payment of fine, to further undergo RI for two years. The apex court quashed the order of the High Court.
The Apex Court in State of Maharashtra v. Gajanan and Another [2003 (12) SCC 432], it was noted as follows:
Having perused the impugned order as also the judgment of this Court in K.C. Sareen's case [2001(6) SCC 584] we find the High Court had no room for distinguishing the law laid down by this Court in K.C. Sareen case supra even on facts. This Court in the said case held: (SCC p. 589, para 11) "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 appealotiose unless such appeal could be heard soon after the filing of the appeal. But suspension of conviction of the offence under the PC Act, dehors the sentence of imprisonment as a sequel thereto, is a different matter."
(emphasis supplied) In the said judgment of K.C. Sareen's case (supra) the Apex Court has held that it is only in very exceptional cases that the court should exercise such power of stay in matters arising out of the Act. The High Court has in the impugned order nowhere pointed out what is the exceptional fact which in its opinion required it to stay the conviction. The High Court also failed to note the direction of this Court that it has a duty to look at all aspects including ramification of keeping such conviction in abeyance. The Apex Court held that the High Court has not taken into consideration any of the above factors while staying the conviction. The view expressed by the Apex Court in K.C. Sareen (supra) was subsequently approved followed by the judgment of Apex Court in Union of India v. Atar Singh [2003(12) SCC 434].
In Union of India v. Avtar Singh & Anr. (2003(12) SCC 434) it was held as follows:
"This appeal is directed against the impugned order of the High Court. The respondent- accused, who has been convicted under Section 409 IPC and Section 13 OF THE of Corruption Act, preferred an appeal to the High Court, which has been entertained. On an application being filed under Section 389 of the Code of Criminal Procedure, the High Court has suspended the conviction solely on the ground that the non- suspension of conviction may entail removal of the delinquent government servant from service."
In K.C. Sareen's case (supra) it was noted as follows:
"11. The legal position, therefore, is this: though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389(1) of the Code, its exercise should be limited to very exceptional cases. Merely because the convicted person files an appeal in challenge of the conviction the court should not suspend the operation of the order of conviction. The court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance. It is in the light of the above legal position that we have to examine the question as to what should be the position when a public servant is convicted of an offence under the PC Act. No doubt when the appellate court admits the appeal filed in challenge of the conviction and sentence for the offence under the PC Act, the superior court should normally suspend the sentence of imprisonment until disposal of the appeal, because refusal thereof would render the very appeal otiose unless such appeal could be heard soon after the filing of the appeal. But suspension of conviction of the offence under the PC Act, dehors the sentence of imprisonment as a sequel thereto, is a different matter.
12. Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity. Proliferation of corrupt public servants could garner momentum to cripple the social order if such men are allowed to continue to manage and operate public institutions. When a public servant is found guilty of corruption after a judicial adjudicatory process conducted by a court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction, it is public interest which suffers and sometimes, even irreparably. When a public servant who is convicted of corruption is allowed to continue to hold public office, it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction, the fallout would be one of shaking the system itself. Hence it is necessary that the court should not aid the public servant who stands convicted for corruption charges to hold only (sic) public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level. It is a different matter if a corrupt public officer could continue to hold such public office even without the help of a court order suspending the conviction.
13. The above policy can be acknowledged as necessary for the efficacy and proper functioning of public offices. If so, the legal position can be laid down that when conviction is on a corruption charge against a public servant the appellate court or the revisional court should not suspend the order of conviction during the pendency of the appeal even if the sentence of imprisonment is suspended. It would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision."
In State of Haryana v. Hasmat [2004(6) SCC 175] it was noted as follows:
"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."
The Apex Court in Central Bureau of Investigation, New Delhi Vs. M.N. Sharma (JT 2008 (8) SC 450) in an S.L.P. (Crl.) No. 3106 of 2007) filed against the order passed by a Single Judge of the Delhi High Court directing that the conviction of the respondent shall remain stayed during the pendency of Criminal Appeal finding that the suspension of conviction indicated no reasons, set aside the order of the Delhi High Court after discussing the ratio laid down in the cases of K.C. Sareen v. CBI, Chandigarh [2001(6) SCC 584]State of Haryana v. Hasmat [2004(6) SCC 175] and In Union of India v. Avtar Singh & Anr. (2003(12) SCC 434) and requested the High Court to take up the matter and dispose of the appeal as early as practicable, preferably by end of 2008. Respondent in that case was working as Sub-Registrar, Tehasildar and was convicted by Special Judge, Tis Hazari Courts, Delhi, for offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (in short `P.C. Act') and Section 120-B of the Indian Penal Code, 1860 (in short `IPC') and sentenced to undergo rigorous imprisonment for a period of one year, 2 years and one year respectively and to pay a fine of Rs.2000/- with default stipulation.
In Rama Narang vs. Ramesh Narang and others (1995) 2 SCC 513, their Lordships of the Supreme Court in paras 10, 11, 18, 19 and 20, which are relevant for present controversy read as under :
10.The above resume would show that the principles question which falls for our determination is whether the appellant is liable to be visited with the consequence of Section 267 of the Companies Act notwithstanding the interim order passed by the Delhi High Court while admitting the appellants appeal against his conviction and sentence by the Additional Sessions Judge, Delhi. As we have said earlier the factum of his conviction and the imposition of sentence is not in dispute. Section 267 of the Companies Act, to the extent it is relevant for our purposes, may be set out:
"267. No company shall, after the com- mencement of this Act, appoint oremploy, or continue the appointment or employment of any person as its managing or whole-item Director who
(a)...........................
(b)...........................
(c) is, or has at any time been convicted by a court of an offence involving moralturpitude."
On a plain reading of this Section it seems clear to us from the language in which the provision is couched that it is intended to be mandatory in character. The use of the word 'shall' brings out its imperative. character. The language is plain, simple and unambiguous and does not admit of more than one meaning, namely, that after the commencement of the Companies Act, no person who has suffered a conviction by a court of an offence involving moral turpitude shall be appointed or employed or continued in appointment or employment by any company as its managing or wholetime Director. Indisputably, the appellant was appointed a Director in 1988 and Managing Director in 1990 after his conviction on 22nd December, 1986. On the plain language of Section 267 of the Companies Act, the Company had, in making the appointments, committed an infraction of the mandatory prohibition contained in the said provision.The Section not only prohibitsappointment or employment after conviction but also expects discontinuance of appointment or employment already made prior to his conviction. This in our view is plainly the mandate of Section 267. As rightly pointed out by the Division Bench of the High Court, Section 274 of the Companies Act provides that a disqualification which a Director incurs on conviction for an offence involv-ing moral turpitude in respect of which imprisonment of not less than six months is imposed, the Central Government may, by notification, remove the disqualification incurred by any person either generally or in relation to any company or companies specified in the notification to be published in the Official Gazette. Such a power is, however, not available in the case of a Managing Director. Secondly, Section 2&3 of the Companies Act provides that the office of a Director shall become vacant if convicted and sentenced as stated hereinabove but sub-section (2) thereof, inter alia, provides that the disqualification shall not take effect for thirty days from the date of sentence and if an appeal is preferred during the pendency of appeal and till seven days after the disposal of the appeal. This benefit is not extended in the case of a Managing Director. The Companies Act has, therefore, drawn a distinction between a Director and a Managing Director; the pro-visions in the case of the latter are more stringent as compared to that of the former. And so it should be because it is the Managing Director who is personally responsible for the business of the Company. The law considers it unwise to appoint or continue the appointment of a person guilty of an offence involving moral turpitude to be entrusted or continued to be entrusted with the affairs of any company as that would not be interests of the share-holders or for that matter even in public interest. As a matter of public policy the law bars the entry of such a person as Managing Director of a company and insists that if he is already in position he should forthwith be removed from that position. The purpose of Section 267 is to protect the interest of the shareholders and to ensure that the management of the affairs of the company and its control is not in the hands of a person who has been found by a competent court to be guilty of an offence involving moral turpitude and has been sen-
tenced to suffer imprisonment for the said crime. In the case of a Director. who is generally not in-charge of the day to day management of the company affairs, the law is not as strict as in the case of a Managing Director who runs the affairs of the company and remains in overall charge of the business carried on by the company. Such a person must be above board and beyond suspicion.
11.That brings us to the next question, namely, whether the interim order passed by the Delhi High Court has the effect of staying the operation of Section 267 of the Companies Act? Admittedly, the appellant before us, on conviction and sentence, preferred an appeal under Section 374(2) of the Code in the Delhi High Court. The learned Judge of the said High Court while admitting the appeal passed an interim order purporting to be one under Section 389(1) of the Code tothe following effect:
"Accused be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the trial judge. The operation of the impugned order shall remain stayed. "
Section 389 of the Code is entitled "suspension of sentence pending the appeal, release of appellant on bail".
Sub- section (1) then provides that pending any appeal by a convicted person the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or onhis own bond. On a plain reading of sub-section (1) of Section 389 of the Code it becomes clear that pending an appeal by a convicted person, the Appellate Court may order that the execution of the sentence or order appealed against be suspended.
18. Be that as it may, we have, on interpretation of the interim order passed by the Delhi High Court in the context of the averments made in application seeking such an order, come to the conclusion that the Delhi High Court while granting stay of the impugned judgment did not and could not have intended to stay the operation of the disqualification under Section 267 of the Companies act consequent upon conviction. To that extent the interpretation put by the Bombay High Court on the interim stay is unassailable. We are afraid the appellant did not approach the Delhi High Court with clean hands if the intention of obtaining the stay was to avoid the disqualification under Section 267 of the 527 Companies Act That is why we have said that a litigant cannot play hide and seek with the court and must approach the court candidly and with clean hands. It would have been so if the intention of the appellant in obtaining the interim stay was to avoid the disqualification he was likely to incur by the thrust of Section 267 of the Companies Act.
If that was his intention he was clearly trying to hoodwink the court by suppressing it instead of coming clean. If he had frankly and fairly stated in his application that he was seeking interim stay of the conviction order to avoid the disqualification which he was likely to incur by virtue of the language of Section 267 of the Companies Act, the Delhi High Court would have applied its mind to that question and would have, for reasons to be stated in writing, passed an appropriate order with or without conditions. We are, therefore, satisfied that the scope of the interim order passed by the Delhi High Court does not extend to staying the operation of Section 267 of the Companies Act.
19.That takes us to the question whether the scope of Section 389(1) of the Code extends to conferring power on the Appellate Court to stay the operation of the order of conviction. As stated earlier, if the order of conviction is to result in some-disqualification of the type mentioned in Section 267 of the Companies Act we see no reason why we should give a narrow meaning to Section 389(1) of the Code to debar the court from granting an order to that effect in a fit case. The appeal under Section 374 is essentially against the order of conviction because the order of sentence is merely consequential thereto; albeit even the order of sentence can be independently challenged if it is harsh and disproportionate to the established guilt. Therefore, when an appeal is preferred under Section 374 of the ode the appeal is against both the conviction and sentence and therefore, we see no reason to place a narrow interpretation on Section 389(1) of the Code not to extend it to an order of conviction. Although that issue in the instant case recedes in the background because High Courts can exercise inherent jurisdiction under Section 482 of the Code if the power was not to be found in Section 389(1) of the Code. We are, therefore, of the opinion that the Division Bench of the High Court of Bombay was not right in holding that the Delhi High Court could not have exercised jurisdiction under Section 482 of the Code if it was confronted with a situation of there being no other provision in the (lode for staying the operation of the order of conviction. In a fit case if the High Court feels satisfied that the order of conviction needs to be suspended or stayed so that the convicted persons does not suffer from a certain disqualification provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone; the disqualification incurred by Section 267 of the Companies act and given effect to cannot be undone at a subsequent date if the conviction is set aside by the Appellate Court. But while granting a stay of suspension of the order of conviction the Court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in so doing it may, if it considers it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company.
20. For the above reasons we are of the opinion that since the interim order of stay did not specifically extend to the stay of conviction for the purpose of avoiding the disqualification under Section 267 of the Companies Act, there is no substance in the appeal and the appeal is, therefore, dismissed. The appellant will pay the costs of this appeal which is quantified at Rs.
25,000/-.
In Ravikant S. Patil Vs. Sarvabhouma S. Bagali (2007) 1 SCC 673 in para 15, 17 and 18 after considering the various judgments of the Apex Court, held as under :
15. It deserves to be clarified that an order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case. Where the execution of the sentence isstayed, the conviction continues to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. An order of stay, of course, does not render the conviction non-existent, but only non-operative. Be that as it may. Insofar as the present case is concerned, an application was filed specifically seeking stay of the order of conviction specifying that consequences if conviction was not stayed, that is, the appellant would incur disqualification to contest the election. The High Court after considering the special reason, granted the order staying the conviction. As the conviction itself is stayed in contrast to a stay of execution of the sentence, it is not possible to accept the contention of the respondent that the disqualification arising out of conviction continues to operate even after stay of conviction.
17. Reverting to the present case, we are not called upon to decide the correctness of the order of stay of conviction dated 26th March, 2004. All that requires to be noticed is that on the dates of nomination and, in view of the said order staying conviction, the appellant was not disqualified. The question whether subsequently the conviction was set aside in appeal or whether the matter is in further challenge before this Court is of no relevance for deciding the point in issue.
18. In view of the above, the decision of the High Court that the appellant was disqualified as on the date of nomination and that his nomination was improperly accepted cannot be sustained. Resultantly, we allow the civil appeal and set aside the impugned judgment of the High Court and dismiss the Election Petition. Since the election petitioner- respondent No.1 has not appeared in this appeal and we were assisted by learned counsel appearing for another contestant in the same election, we leave the parties to bear their own costs.
In Navjot Singh vs. State of Punjab and anr. (2007 ) 2 SCC 574, in paras 10, 11,12,13,14,15, and 16 held as under :
10. We have pointed out above the broad features of the case. The incident happened all of a sudden without any pre-meditation. The deceased was wholly unknown to the appellant. There was no motive for commission of the crime. The accused are alleged to have lost temper and started giving abuses on account of objection raised by the occupants of the Maruti car due to obstruction being caused by the vehicle of the appellant. Blows by fist are alleged to have been given and no weapon of any kind has been used. The medical evidence shows that the deceased had a diseased heart. The doctor who performed the post-mortem examination was unable to give the cause of death. The Medical Board gave its opinion after nearly a fortnight and that too does not ascribe the death due to any external injury but says "effects of head injury and cardiac condition." The medical evidence does not conclusively establish that the death occurred due to blow given on the head. If in the FIR, which is the earliest version, and, also in his statement in Court which was recorded after more than 4 years on 20.1.1993, Jaswinder Singh did not assign any role of causing injury on the head of the deceased to the appellant, whether his subsequent statement given after several years, wherein he assigned the specific role to the appellant of hitting the deceased on the head by a fist and thereby making him responsible for causing the death of the deceased should be believed, will certainly require consideration at the time of hearing the appeal. If the statement which Jaswinder Singh gave after several years wherein he attributed the head injury to the appellant is not accepted for the reason that it is at variance with the version in the FIR and his earlier statement, the appellant cannot be held guilty under Section 304 Part II IPC. These features of the case which touch upon the culpability of the appellant, prima facie appear to be in his favour. Another feature which has a bearing is that the findings on factual aspects of the case recorded in favour of the appellant by the learned Sessions Judge resulting in acquittal have been reversed in appeal by the High Court.
11. The incident took place on 27.12.1988. It has no co-relation with the public life of the appellant which he entered much later in 2004 when he was elected as a Member of the Parliament. It is not a case where he took advantage of his position as M.P. in commission of the crime. As already stated, it was not necessary for the appellant to have resigned from the membership of the Parliament as he could in law continue as M.P. by merely filing an appeal within a period of 3 months and had he adopted such a course he could have easily avoided incurring any disqualification at least till the decision of the appeal. However, he has chosen to adopt a moral path and has set high standards in public life by resigning from his seat and in seeking to get a fresh mandate from the people. In the event prayer made by the appellant is not granted he would suffer irreparable injury as he would not be able to contest for the seat which he held and has fallen vacant only on account of his voluntary resignation which he did on purely moral grounds. Having regard to the entire facts and circumstances mentioned above we are of the opinion that it a fit case where the order of conviction passed by the High Court deserves to be suspended.
12. Shri Sushil Kumar, learned senior counsel for the State of Punjab has submitted that the case in hand cannot be called as a rare case where an order for suspension of conviction should be passed. Learned counsel has also submitted that the appellant having given up his rights under Sub-section (4) of Section 8 of the Representation of the People Act and having himself resigned from the membership of the Parliament, cannot again come back to the Parliament until the appeal is decided in his favour. In our opinion the contentions raised have no substance. The broad features of the case which impel us to grant the order in favour of the appellant have already been discussed earlier and it is not necessary to repeat the same. The argument that the appellant having given up his right under Sub-section (4) of Section 8 should not be permitted to offer himself as a candidate, again is wholly misconceived. If a person convicted of any offence enumerated in Sub-sections (1), (2) and (3) of Section 8 of the Act files an appeal within three months he continues to remain a Member of Parliament or Legislature of a Sate on the basis of protection afforded by Sub-section (4), but not on any moral authority because the electorate had exercised their franchise prior to the order of conviction and not when he had become a convict. But a person who resigns from the Parliament or the Assembly and seeks a re-election, if elected, will have greater moral authority to represent the constituency. Therefore, it is not possible to accept the contentions raised by Shri Sushil Kumar.
13. Shri Rakesh Dwivedi, learned senior counsel for the complainant has submitted that in order to maintain purity and probity in public bodies, criminalisation of politics has to be stopped and persons who have been convicted of any offence should not be allowed to enter the Parliament. He has elaborated his argument by submitting that irrespective of quantum of sentence if a person is convicted for an offence referred to in Sub-section (1) of Section 8 where the punishment imposed may be only a fine, a person will incur the disqualification from the date of conviction which will remain for a period of six years and this evinces the intention of the Legislature that a convict should not enter the precincts of Parliament or Legislature of a State. In our opinion the contention raised cannot be accepted. The Representation of the People Act, 1951 is a complete Code. The preamble of the Act is # An Act to provide for the conduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections.
The Act provides not only the eligibility and qualification for membership of the House of People and Legislative Assembly but also for disqualification on conviction and other matters. The Parliament in its wisdom having made a specific provision for disqualification on conviction by enacting Section 8, it is not for the Court to abridge or expand the same. The decisions of this Court rendered in Rama Narang v. Ramesh Narang & Ors. (supra) and Ravi Kant S. Patil v. Sarvabhouma S. Bagali (supra) having recognized the power possessed by the Court of appeal to suspend or stay an order of the conviction and having also laid down the parameters for exercise of such power, it is not possible to hold, as a matter of rule, or, to lay down, that in order to prevent any person who has committed an offence from entering the Parliament or the Legislative Assembly the order of the conviction should not be suspended. The Courts have to interpret the law as it stands and not on considerations which may be perceived to be morally more correct or ethical.
14. Shri Rakesh Dwivedi has also submitted that once an accused has been convicted and sentenced, it is only the execution of the sentence which can be suspended and the order of conviction cannot be suspended or stayed as the same is not capable of being stayed or suspended. For this reliance is placed on certain observations made in paras 34 and 44 of the decision rendered in B.R. Kapur v. State of T.N. & Anr. (2001) 7 SCC 231 and on paras 42, 43, 53 and 54 in K. Prabhakaran v. P. Jayarajan (2005) 1 SCC 754. The contention is that the appellant would not be absolved of the disqualification even if an order of suspension or stay of the conviction is passed by this Court. We are dealing here with the limited question, viz., the prayer made by the appellant for suspending or staying the order of conviction. We are not required to adjudicate upon the question as to what will be the effect of the order and further whether he will continue to be disqualified for the purpose of contesting the election even if the prayer made by the appellant is granted as such an issue is wholly alien to the present controversy which can arise only in an election petition where the validity of the election may be called in question.
15. Lastly, Shri Dwivedi has submitted that in view of the law laid down in State of Tamil Nadu v. A. Jaganathan (1996) 5 SCC 329 and K.C. Sareen v. C.B.I., Chandigarh (2001) 6 SCC 584 the order of conviction passed against the appellant should not be suspended. The cases cited have no application to the facts of the present case as both of them related to conviction on charges of corruption and in that context it was observed that when conviction is on a corruption charge, it would be a sublime public policy that the convicted person is kept under disability of the conviction instead of keeping the sentence of imprisonment in abeyance till the disposal of the appeal. In such cases it is obvious that it would be highly improper to suspend the order of conviction of a public servant which would enable him to occupy the same office which he misused. This is not the case here.
16. For the reasons discussed above, we are of the opinion that the application moved by the appellant deserves to be allowed. The order of conviction passed against the appellant by the High Court on 1.12.2006 and the sentence awarded on 6.12.2006 are suspended and the conviction shall not be operative till the decision of the appeal.
In Sanjay Dutt vs. State of Maharashtra TR. CBI, Bombay vs. (2009 IV AD (SC) 109) in paras 6 & 7, after discussing the case of Navjot Sidhu vs. State of Punjab and Anr. (2007) 2 SCC 574 and Rama Narang vs. Ramesh Narang (1995) 2 SCC 513) held as under
6. We have carefully considered the contentions advanced by the petitioner. The petitioner has been convicted for serious offences. Of course, his conviction and sentence have been challenged before this Court in an appeal. Though our attention was drawn to the various findings recorded by the Special Judge and also the nature of evidence adduced by the prosecution, we do not propose to consider these facts at this stage as it may seriously prejudice either of the parties when the appeal filed by the petitioner is considered by this Court. The petitioner is a well-known cine artist and because of his contribution to art and cinema he has got large number of fans throughout the country and abroad. His father was also a well-known film actor and he was deeply involved in politics. At one point of time, petitioner's father was Minister in the Union Cabinet. The petitioner is not a habitual criminal nor it has been brought to our notice that he had involved in any other criminal case. Despite all these favourable circumstances, we do not think that this is a fit case where conviction and sentence could be suspended so that the bar under Section 8(3) of the Representation of People Act, 1951 will not operate against the petitioner. Law prohibits any person who has been convicted of any offence and sentenced to imprisonment for not less than two years from contesting the election and such person shall be disqualified for a further period of six years since his release. In the face of such a provision, the power of the Court under Section 389 Cr.P.C. shall be exercised only under exceptional circumstances. The learned counsel appearing for the petitioner has placed reliance on the decision of this Court in Navjot Singh Sidhu's case (supra). But in that case, the petitioner was an MP and he could have continued as an MP even after his conviction and sentence in view of Section 8(4) of the Representation of People Act, 1951. The petitioner in Navjot Singh Sidhu's case (supra) resigned and expressed his desire to contest the election. In fact, that was a case where the trial court acquitted the petitioner and the High Court, in reversal, found the petitioner guilty. It was in those circumstances this Court granted stay of the order of conviction and sentence in that case.
7. In the present case, no such circumstances are in favour of the petitioner. In view of the serious offence for which he has been convicted by the Special Judge, we are not inclined to suspend the conviction and sentence awarded by the Special Judge in the present case. We make it clear that we do not express any opinion on the merit and, if any of the observations made in this order, even it has remote possibility to prejudice either parties, we state that the same is only made for the purpose of disposal of Cr.M.P. No. 4087 of 2009- application for suspension/stay of conviction.
Following principles emerge, from the judgments of the Hon'ble Apex Court mentioned above:
(i) The 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 and grant of bail. What really was necessary to be considered by the High Court is whether reasons existed to suspend the execution of sentence and thereafter grant bail.
(ii) In considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 IPC, the Court should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder. These aspects have not been considered by the High Court, while passing the impugned order.
(iii) 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.
(iv) When the appellate court admits the appeal filed in challenge of the conviction and sentence for the offence under the PC Act, the superior court should normally suspend the sentence of imprisonment until disposal of the appeal, because refusal thereof would render the very appeal otiose unless such appeal could be heard soon after the filing of the appeal. But suspension of conviction of the offence under the PC Act, dehors the sentence of imprisonment as a sequel thereto, is a different matter.
(v) When a public servant is found guilty of corruption after a judicial adjudicatory process conducted by a court of law, judiciousness demands that he should betreated as corrupt until he is exonerated by a superior court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction, it is public interest which suffers and sometimes, even irreparably.
(vi) when conviction is on a corruption charge against a public servant the appellate court or the revisional court should not suspend the order of conviction during the pendency of the appeal even if the sentence of imprisonment is suspended. It would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision."
(vii)The High Court could not have exercised jurisdiction under Section 482 of the Code if it was confronted with a situation of there being no other provision in the Code for staying the operation of the order of conviction. In a fit case if the High Court feelssatisfied that the order of conviction needs to be suspended or stayed so that the convicted persons does not suffer from a certain disqualification provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone; the disqualification incurred by Section 267 of the Companies act and given effect to cannot be undone at a subsequent date if the conviction is set aside by the Appellate Court. But while granting a stay of suspension of the order of conviction the Court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in so doing it may, if it considers it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company.
(viii) An order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case. Where the execution of the sentence is stayed, the conviction continues to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. An order of stay, of course, does not render the conviction non-existent, but only non-operative.
(ix) The Parliament in its wisdom having made a specific provision for disqualification on conviction by enacting Section 8, it is not for the Court to abridge or expand the same. The decisions of this Court rendered in Rama Narang v. Ramesh Narang & Ors. (supra) and Ravi Kant S. Patil v. Sarvabhouma S. Bagali (supra) having recognized the power possessed by the Court of appeal to suspend or stay an order of the conviction and having also laid down the parameters for exercise of such power, it is not possible to hold, as a matter of rule, or, to lay down, that in order to prevent any person who has committed an offence from entering the Parliament or the Legislative Assembly the order of the conviction should not be suspended. The Courts have to interpret the law as it stands and not on considerations which may be perceived to be morally more correct or ethical.
(x) Despite all these favourable circumstances, we do not think that this is a fit case where conviction and sentence could be suspended so that the bar under Section 8(3) of the Representation of People Act, 1951 will not operate against the petitioner. Law prohibits any person who has been convicted of any offence and sentenced to imprisonment for not less than two years from contesting the election and such person shall be disqualified for a further period of six years since his release. In the face of such a provision, the power of the Court under Section 389 Cr.P.C. shall be exercised only under exceptional circumstances.
In the light of the above principles, I have gone through the application submitted by the applicant for staying the conviction of the applicant. In my view the applicant has at present no case for stay of the conviction. The application being devoid of merit stands dismissed.
(Mahesh Chandra Sharma) J.
OPPareek/