This appeal is directed against the order dated 24.07.2023, passed by the High Court of Judicature at Allahabad (hereinafter, ‘High Court’), partially allowing the application filed by the Appellant under Section 389(1) of the Code of Criminal Procedure, 1973 (hereinafter, ‘CrPC’), for the stay on the sentence and conviction, awarded by the Learned Additional Sessions Judge, MP/MLA Court, Ghazipur (hereinafter, ‘Trial Court’) vide judgement and order dated 29.04.2023. Until the recent disqualification following the judgment rendered by the Trial Court, the Appellant was the incumbent Member of Parliament for the Ghazipur Constituency, since 2019. On the very same day, Case Crime No 1052/2007 was registered under Section 3(1) of the UP Gangsters Act at the Mohammadabad Police Station in the Ghazipur District of Uttar Pradesh (hereinafter, ‘New FIR’). Case Crime
No 28/1998 was registered under Section 171F of the Indian Penal Code, 1860 (hereinafter, ‘IPC’) and Section 135(2) of the Representation of People’s Act, 1951 (hereinafter, ‘RPA’) on 16.02.1998, at Police Station Nonhara, District Chandauli, Uttar Pradesh, for violation of the Model Code of Conduct during the election period. Case Crime No 589/2005 was registered under Sections 147, 148, 149, 307, 302, 404 and 120-B of the IPC, at Police Station Bhanvar Kol, District Ghazipur, on 29.11.2005. Case Crime No 18/2014 was registered under Sections 171J, 188 of the IPC and Section 121(2) of the RPA, at Police Station Chakarghatta, District Chandauli, Uttar Pradesh and the Appellant has already been granted bail in this matter.
He also filed an application under Section 389(1) of the CrPC, seeking inter alia, (i) suspension of the sentence awarded by the judgement and order dated 29.04.2023 and his release on bail, during pendency of the First Criminal Appeal; (ii) stay of the effect and operation of the judgement and order dated 29.04.2023; and (iii) stay of realisation of fine during pendency of the appeal. Abhishek Manu Singhvi, learned Senior Counsel for the Appellant, argued that the High Court erred in not granting suspension of the conviction, especially in light of the fact that disqualification from membership of the Parliament, leads to irreversible consequences such as: (a) the loss of the next six months as Member of the Parliament in the Lok Sabha; and (b) disqualification from contesting elections for a total period of ten years.
Nataraj, learned Additional Solicitor General, representing the State of UP, strongly contested the prayer for suspension of conviction on the ground that the Appellant having been convicted under Section 3(1) of the UP Gangster Act, with a sentence of more than two years under the said Act, automatically suffered disqualification by virtue of Section 8 of RPA.
Whether the Appellant has made out a prima facie case for the suspension of conviction under Section 389(1) of the CrPC? Section 389(1) enjoys upon the Appellate Court, the power to issue an order for the suspension of a sentence or an order of conviction during the pendency of an appeal. There is no gainsaying that in order to suspend the conviction of an individual, the primary factors that are to be looked into, would be the peculiar facts and circumstances of that specific case, where the failure to stay such a conviction would lead to injustice or irreversible consequences. Turning to the case in hand, the Appellant was convicted on the basis of a gang chart that hinged solely on an Old FIR, where the Appellant had already been acquitted vide judgement dated 03.07.2019. Although the High Court stayed the execution of the sentence and granted bail to the Appellant, it refused to suspend the conviction itself. Bagali, holds that an order granting a stay of conviction should not be the rule but an exception and should be resorted to in rare cases depending upon the facts of a case. In this context, the detailed circumstances elaborated hereinabove, serve as compelling reasons to advocate for the suspension of the Appellant’s conviction and the consequent disqualification. Conversely, it would also impede the Appellant’s ability to represent his constituency based on the allegations, the veracity whereof is to be scrutinised on a re-appraisal of the entire evidence in the First Criminal Appeal pending before the High Court. In this context it is crucial that we also address the final issue which is before us for consideration, i.e., the question of relevance of ‘moral turpitude’ in the present circumstances. Although ‘moral turpitude’ may carry relevance within the context of elected representatives, the courts are bound to construe the law in its extant state and confine their deliberations to those facets explicitly outlined, rather than delving into considerations pertaining to the moral rectitude or ethical character of actions. It would thus be appropriate for the Courts to balance the interests of protecting the integrity of the electoral process on one hand, while also ensuring that constituents are not bereft of their right to be represented, merely consequent to a threshold opinion, which is open to further judicial scrutiny.
It is therefore imperative to weigh the competing interests presented by both the Appellant and the State. The Ghazipur Parliamentary Constituency shall not be notified for bye-election, in terms of Section 151 of the RPA, till the decision of the Appellant’s criminal appeal by the High Court; ii.
Consequently, we direct the Registrar General of the High Court to put up this order before Hon’ble The Chief Justice of the High Court for immediate enlisting of the Criminal Appeal No 5295 / 2023 with a request to the appropriate Bench, for an out of turn hearing and adjudication of the said appeal by 30.06.2024. The draft of the judgment prepared by Hon’ble Surya Kant, J., speaking for His Lordship and Hon’ble Ujjal Bhuyan, J., is so well considered and supplemented with an enviable degree of articulation that it almost prompted my concurrence. The assail in this appeal is to a judgment and order dated 24 July, 2023 of the High Court of Judicature at Allahabad (“High Court”, hereafter) whereby a criminal miscellaneous application under section 389(1) of the Code of Criminal Procedure, 1973 (“Cr.
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The refusal of the High Court to stay the conviction of the appellant has resulted in his disqualification from the membership of Parliament by operation of law, i.e., section 8(3) of the Representation of the People Act, 1951 (“the RoP Act”, hereafter), which has duly been notified by the Lok Sabha Secretariat. It was noticed by the High Court that the only ground urged by the appellant for seeking relief of suspension of the order under appeal was that if such relief were not granted, he would remain disqualified. There is only a primary conviction, against which an appeal has been carried to the High Court. The offence, in the case under consideration, though has been held to be proved, the judgment of conviction suffers from various infirmities based whereon the High Court itself proceeded to suspend execution of the sentence. The infirmities present in the judgment and order rendered by the Trial Court and the infirmity from which the judgment and order under appeal suffer would constitute ‘exceptional circumstances’ empowering this Court to stay the conviction.
The electoral constituency of Ghazipur is not being represented in Parliament due to the appellant’s disqualification arising out of his conviction. However, if the conviction were to be stayed and down the line if the High Court affirmed the conviction by the Trial Court, the appellant would in any case be bound to serve his sentence without any prejudice caused to the respondent. The conviction in the present case is under the Gangsters Act which is of a serious nature and stay of conviction in this case would not be in consonance with the settled principles laid down by this Court in several of its decisions. Learned ASG also invited our attention to the contents of the affidavit filed by the appellant before the High Court in support of his prayer for suspension of the order under appeal as well as the finding returned by the High Court in that behalf. Reference has been made by learned senior counsel appearing for the parties to multiple decisions of this Court on the subject of stay/suspension of conviction, which need to be adverted to prior to deciding the contentious issue. Patil (supra) illuminates the position of law with respect to stay/suspension of conviction. Fresh elections to the Karnataka Legislative Assembly having been notified in the early part of 2004, the appellant once again moved the Bombay High Court and obtained an order dated 26 March, 2004 staying his conviction. Insofar as the present case is concerned, an application was filed specifically seeking stay of the order of conviction specifying the consequences if conviction was not stayed, that is, the appellant would incur disqualification to contest the election. All these decisions, while recognising the power to stay conviction, have cautioned and clarified that such power should be exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences.” (emphasis supplied) Since the appellant was not disqualified to file his nomination as well as contest the election, this Court set aside the impugned judgment and order while allowing the appeal. Despite such conviction resulting in the appellant’s disqualification under section 267 of the Companies Act, 1956 to remain as the Managing Director, he continued to attend Board meetings of the company in question. Ultimately a suit came to be instituted before the Bombay High Court by the appellant and others and a learned single Judge granted interim relief which enabled the appellant to continue as the Managing Director. In such situations the attention of the Appellate Court must be specifically invited to the consequence that is likely to fall to enable it to apply its mind to the issue since under Section 389(1) it is under an obligation to support its order ‘for reasons to be recorded by it in writing’.
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. Therefore, when an appeal is preferred under Section 374 of the Code the appeal is against both the conviction and sentence and therefore, we see no reason to place a narrow interpretation on Section 389(1) of the Code not to extend it to an order of conviction, although that issue in the instant case recedes to the background because High Courts can exercise inherent jurisdiction under Section 482 of the Code if the power was not to be found in Section 389(1) of the Code. But while granting a stay of (sic or) suspension of the order of conviction the Court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in so doing it may, if it considers it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company.” (emphasis supplied) 14. The contention raised was rejected holding that the RoP Act is a complete code providing not only the eligibility and qualification for membership of the House of People and the Legislative Assemblies but also for disqualification on conviction and other matters. Patil (supra) were referred to, which recognized the power possessed by the court of appeal to suspend or stay an order of conviction. 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.
This Court in Lily Thomas (supra) held that Parliament lacked the power to enact sub-section (4) of section 8 and declared the same ultra vires. PC could also stay the conviction if the power was not to be found in section 389 thereof. This Court, having considered Rama Narang (supra), Lily Thomas (supra), Navjot Singh Sidhu (supra) and Ravikant S.
Since the decision in Rama Narang, it has been well settled that the appellate court has the power, in an appropriate case, to stay the conviction under Section 389 besides suspending the sentence. Moreover, it is untenable that the disqualification which ensues from a conviction will operate despite the appellate court having granted a stay of the conviction. As the decision in Lily Thomas has clarified, a stay of the conviction would relieve the individual from suffering the consequence inter alia of a disqualification to the provisions of sub-sections (1), (2) and (3) of Section 8.” (emphasis supplied) 19.
Finally, the recent decision of this Court in Rahul Gandhi v. 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. 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.
Thus, in view of the aforesaid discussion, a clear picture emerges to the effect that the appellate court in an exceptional case, may put the conviction in abeyance along with the sentence, but such power must be exercised with great circumspection and caution, for the purpose of which, the applicant must satisfy the court as regards the evil that is likely to befall him, if the said conviction is not suspended. Relief of staying the order of conviction cannot be granted only on the ground that an employee may lose his job, if the same is not done.” (emphasis supplied) 23.
PC as the repository of power to stay a conviction in a case where section 389(1) thereof may not apply, the power of an “Appellate Court” to stay a conviction pending an appeal against a judgment and order of conviction and sentence too has been read into section 389(1) by Rama Narang (supra), although the statute on its plain language does not expressly say so. This, in all probability, is because the inherent power under section 482 is the exclusive preserve of the high courts and not any other court exercising appellate power; hence, an “Appellate Court”, not being a high court, would be denuded of the power to stay a conviction under section 482 in case such a prayer were made during the pendency of an appeal before it (the appellate court). Prabhakaran (supra) being a Constitution Benches Bench decision, the same would bind all Benches of lesser strength and it is trite that any interpretation of section 389(1), Cr. In that case, the appellant had been convicted for offences under sections 420 and 468 read with section 34 of the IPC and sentenced to two years imprisonment by the trial court’s order dated 9 May, 2002. The sole question falling for decision was whether the order passed on 31 May, 2002 by the appellate court, whereby the conviction and sentence of the appellant was suspended, would amount to staying the conviction or not. Patil (supra), it was observed that there an application for stay of conviction was specifically filed specifying the consequences if the conviction was not stayed and that such fact was taken into consideration while holding in that case that the conviction was specifically stayed, which was not the case here. In the context of civil proceedings, it is noted that Order XLI Rule 5 of the Code of Civil Procedure (“CPC”, hereafter) empowers an appellate court to order stay of execution of the decree appealed from.
However, the legislature has prefaced “the sentence or the order appealed against” with “execution”, which has the effect of connoting that only such part of the judgment and order appealed against, which is capable of being executed, can be suspended under section 389(1), Cr. In the absence of a stay of conviction having been sought and an order to that effect having been passed, an order merely suspending execution of the order appealed against would be of no use in a matter of the present nature. suspension of execution of an order of conviction or stay of the conviction — whatever be the prayer made before the Court of appropriate jurisdiction, the same can be granted depending upon the facts of each particular case and the courts have a duty to look at all aspects including the ramifications of keeping the conviction in abeyance. a convict who has appealed against the judgment and order of conviction and sentence – if he wishes to have the conviction stayed – has to specifically pray for stay of conviction, since despite suspension of execution of sentence and the order appealed against, the conviction remains and such suspension does not amount to stay of conviction; e.
Amidst this vast legislative landscape, if any one enactment is to be bestowed with the pride of place just below the Constitution, it is undoubtedly the RoP Act because of the same being anchored in the concept of the social contract and the rule of law. The RoP Act, thus, has a pervasive impact on the lives of all citizens, transcends all political boundaries and intricately weaves itself into the very fabric of the nation’s democratic body polity. Sub-clause (e) of clause (1) of Article 102, having relevance here, provides that “a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament if he is so disqualified by or under any law made by Parliament”. As a reasonable sequitur, the Parliament by exercising this power has listed out the disqualifications for membership of Parliament and Legislative Assemblies/Legislative Councils of State as are found in section 8 of the RoP Act. A passage from the decision, which was delivered at the dawn of the Constitution, gives an insight to the pillars underground on which the Constitution is founded and whether placing the petitioner under detention, necessarily resulting in his absence from assembly sessions, could put in jeopardy any basis of the Constitution. We are called upon to consider the legal position with regard to all forms of preventive detention, whether for action prejudicial to the security of the State itself or the maintenance of public order which threatens to undermine the first pillar or for action prejudicial to the maintenance of essential services particularly those affecting the supply of food, such as black marketing and boarding and cornering operations by which fortunes can be accumulated at the expense of the suffering poor, which threatens to undermine the second pillar. Once a member of a Legislative Assembly is arrested and lawfully detained, though without actual trial under any Preventive Detention Act, there can be no doubt that under the law as it stands, he cannot be permitted to attend the sittings of the House.
That contention is wholly irrelevant for the purposes of this petition, which proceeds on the basis that detention is lawful, bona fide and for proper grounds. Kamath responded thus : “I am sure that this new Parliament under the new Constitution will frame such rules as will debar such Members from sitting or continuing in either House of Parliament as have been convicted of any of the offences which are mentioned by Prof. It is derogatory not merely to the dignity of the Houses of Parliament but also derogatory to the good sense and wisdom of the people who elected them as members of Parliament.” 38.
Prabhakaran (supra), this Court underlined the aim of introducing disqualification under section 8(3) of the RoP Act, which is to deter criminalisation of politics. ***
A time has come that Parliament must make law to ensure that persons facing serious criminal cases do not enter into the political stream. In such a context, the unequivocal provision within the RoP Act that mandates automatic disqualification upon the recording of a conviction vividly reflects the deliberate legislative intent of the Parliament to keep away any tainted parliamentarian from continuing in office until, of course, he secures a stay of the conviction under the governing procedural law. Once they have laid down a standard under the RoP Act by which an individual parliamentarian’s actions are to be judged, those standards ought not to be relaxed simply on the consideration that the electorate would stand deprived of its representation in the Parliament. The precedents of this Court, to which reference has been made in course of the foregoing discussion, do lay down the principle that the likelihood of losing his livelihood (a facet of the Fundamental Right to Life) by the appealing convict if the conviction were not stayed during the pendency of the appeal is not a good enough ground for obtaining such relief.
It could be so that upon the conviction being set aside, status quo ante may be restored, however, this might not be acceptable to those principled few who put their reputation at a pedestal higher than pecuniary gains and rue the days of survival with the social stigma attached to such a removal. No employer, in the ordinary course of business would keep the doors of employment ajar for such a selectee to enable him to join, subject to his securing an honourable acquittal in the criminal trial. While the laws would seem to require that anyone desirous of entering public service should have a blemish less and untainted profile, ironically, it is not a rare occurrence that a very few lawmakers create difficult situations for themselves and seek to be treated in a manner different from how a common job aspirant seeking to enter public service is treated. Should the courts go out of the way to stay the conviction or suspend execution of the order under appeal when no Fundamental or other Constitutional right of the convict would be abrogated if a stay were not granted? If a disqualification ‘by the Constitution’ or ‘under the Constitution’ is contrasted with disqualification incurred by a convict to continue as holders of public offices or the office of a director of a company ‘by a statute’, to wit, the NGT Act, the Human Rights Act or the Companies Act, or to continue in service either by Article 311 of the Constitution or by the discipline rules of public institutions, for eg., the one in K.C. The trust placed on elected representatives is conditional on their continued adherence to the principles and laws governing their role. Extraordinary circumstances put forth by an elected member suffering a disqualification and urging consideration of his case for staying a conviction must necessarily involve a level of exceptionality which is beyond the routine. Against this backdrop, the standard applied to stay the conviction of a parliamentarian ought to attract a higher standard and the disability stemming from the conviction cannot be forestalled using the identical standard prescribed for suspending the execution of the sentence or order appealed against. While the standard for suspending a conviction is contingent upon the unique facts and circumstances of each case, it remains unequivocal that regardless of the individual seeking a stay of conviction, only under exceptional circumstances, as demonstrated before an “Appellate Court” wielding authority under section 389(1), Cr. It is no doubt true that if a judgment of conviction is outrageously in defiance of reason and logic and appears to be unsustainable without elaborate arguments being required to be advanced to satisfy the Court in that behalf, the same could afford a ground for suspending the execution of the conviction or, in a rare situation, even for staying the conviction. However, the present is not such a case where at this stage it can be contended with the requisite degree of conviction that the judgment and order dated 29 April, 2023 of the Trial Court, in no case, would be sustained by the High Court; hence, it is prudent to stay away from examining whether the judgment recording conviction suffers from such infirmities so as to warrant a stay of conviction. Such an endeavour would also necessarily require taking note of the submission of learned ASG that the grounds now urged before this Court by the appellant of the consequences that he is likely to suffer if the conviction be not stayed, and the new prayer, were never urged/made before the High Court. Dhiraj Prasad Sahu, a 3- Judge Bench of this Court while approving Jyoti Basu (supra) observed that what one has to keep in mind while interpreting the phrase appearing in section 8(3) is that, in cases of this nature, the Court is not dealing with a Fundamental Right or a common law right.
Maharashtra Legislative Assembly, another 3- Judge Bench of this Court, dealing with the suspension of certain members of the Legislative Assembly of Maharashtra, observed thus: “60….It is true that right to vote and be represented is integral to our democratic process and it is not an absolute right. Out of these electors, there could be some who may not be willing to have their interests represented by the appellant who has been convicted, not to speak of the cross-section of the electorate who voted against him and who, in all probability, would like to have the voice of such tainted member silenced for all intents and purposes. The answer to this question, I am inclined to think, is a simple “NO” unless, of course, it is shown that grave injustice and irreversible consequences would follow a refusal by the competent court to stay the conviction.
PC to stay the conviction, the disqualification that had taken effect and notified vide the Gazette Notification would continue to remain unaffected unless the conviction itself was stayed. In the absence of any prayer for stay of conviction before the High Court to offset the said notification from remaining operative, no order could have been passed by the High Court staying the conviction.
Case Title: AFJAL ANSARI Vs. STATE OF UP (2023 INSC 1071)
Case Number: Crl.A. No.-003838-003838 / 2023
