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2007 DIGILAW 1715 (PAT)

Dev Nath Yadav v. State Of Bihar

2007-11-05

GHANSHYAM PRASAD, SHYAM KISHORE SHARMA

body2007
Judgment 1. I.A. No. 1178 of 2007 This Interlocutory Application has been filed under Section 482 read with Section 389 of the Code of Criminal Pro- cedure for suspension/stay of the conviction of the appellant Dev Nath Yadav during the pendency of this appeal. 2. The appellant is a sitting member of Bihar Legislative Assembly. By the impugned judgment dated 4/5.8.2006 passed by Additional Sessions Judge, Fast Track Court No.-IV, Madhubani in Sessions Trial No. 47 of 1993 the appellant has been convicted under Section 302 and other Sections of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs. 5,000/-. The appellant has preferred this appeal against his conviction and sentence. The sentence has already been suspended and he is on bail. This Interlocutory Application has been filed for suspension/stay of his conviction on the ground that it would incur his disqualification for being chosen for either house of Bihar Legislative or Parliament in view of the bar provided in Section 8(3) of the Representation of People Act, 1951. 3. There is no dispute that the appellate court has power to stay or suspend either order of conviction or sentence or both, under Section 389(0 of the Code of Criminal Procedure. However, it is well settled principle of law that the order of conviction should not be suspended or stayed in a routine manner. It should be resorted to in a rare case depending upon special facts of each case and on being shown the exceptional circumstance. It cannot be resorted to only because convict files appeal against conviction or any adverse consequences likely to be incurred in future. 4. Learned counsel for the appellant in course of submission has urged that the appellant is well known figure and also a sitting member of Bihar Legislative Assembly. If his conviction is not stayed, he would be debarred from being chosen or contest the election either for Legislative Assembly or for Parliament. It has further been contended that the Apex Court in several decisions has considered it as special circumstance and has suspended/stayed the order of conviction. If his conviction is not stayed, he would be debarred from being chosen or contest the election either for Legislative Assembly or for Parliament. It has further been contended that the Apex Court in several decisions has considered it as special circumstance and has suspended/stayed the order of conviction. In support of his contention, he has relied upon a decision reported in (2007)1 S.C.C. 673 [: 2007(1) PLJR (SC)85] (Ravi Kant S. Patil vs. Sarvabhouma S. Bagali), (2007)2 S.C.C. 574 [: 2007(1) PLJR (SC)329] (Navjot Singh Sidhu vs. State of Punjab and Another), (1995)2 S.C.C. 513 (Rama Narang vs. Ramesh Narang) and a decision of a Division Bench of this Court passed on 15.10.2004 in Cr. Appeal 446 of 2002(DB), Ramesh Jeya Sahni @ Bhaga vs. State of Bihar. 5. The above decision of the Apex Court reported in (2007)1 SCC 673 [: 2007(1) PLJR (SC)85] has been rendered by three Judges. In that very decision, the decision passed in Rama Narang case as well as decision reported in (2001)6 SCC 584 (K.S. Sareen vs. C.B.I.) has been relied upon. In that very case, the court had not been called upon to decide the correctness of the stay order of conviction passed by the High Court. The effect of stay of conviction has been discussed. However, in course of discussion, several earlier decisions have also been discussed and ultimately in paragraph 16.5 it has been held as follows: "All these decisions, while recognising the power to stay conviction, have cautioned and clarified that such power should be exercised only in the exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences." 6. In Navjot Singh Sidhus case also after relying upon the decision of Ravikant S. Patil (supra), the Apex Court has expressed similar view in paragraph 6 of the judgment which is as follows: "The legal position is, therefore, clear that an appellate court can suspend or grant stay of order of convic- tion. But the person seeking stay of conviction should specifically draw the attention of the appellate court to the consequences that may arise if the conviction is not stayed. Unless the attention of the court is drawn to the specific consequences that would follow on account of conviction, the person convicted cannot obtain an order of stay of conviction. But the person seeking stay of conviction should specifically draw the attention of the appellate court to the consequences that may arise if the conviction is not stayed. Unless the attention of the court is drawn to the specific consequences that would follow on account of conviction, the person convicted cannot obtain an order of stay of conviction. Further, grant of stay of conviction can be resorted to in rare cases depending upon the special facts of the case." 7. However, in that very case, conviction has been stayed purely on moral ground as the appellant after conviction resigned from the membership of Parliament as well as in view of the fact that the appellant had been acquitted by the trial court. 8. In the above order dated 15.10.2004 passed by a Division Bench of this Court, conviction of sitting M.L.A. was stayed as the fresh election was to be hetd shortly in the month of February, 2005. 9. In the instant case, the appellant has failed to state any specific circumstance for stay of conviction. No election either for Legislative Assembly or Parliament is likely to take place in near future. He has also no moral stand to get stay of his conviction as even after conviction he has not resigned from the membership of Bihar Legislative Assembly like Navjot Singh Sidhu. 10. Thus, in view of above discussions of legal position, we are not inclined to stay/suspend the conviction of the appellant, as prayed for. Accordingly, LA. No.1178 of 2007 stands dismissed.