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2010 DIGILAW 1012 (JHR)

Binod Rai v. State of Jharkhand

2010-11-20

J.C.S.RAWAT

body2010
Order I.A. (Cr.) Nos. 2500 & 2501 of 2010 Interlocutory application being I.A. No.2501/2010 has been filed for consideration of this Court to suspend the order of conviction of the appellant Nos. 3 and 4, namely, Anant Kumar Rai and Ashok Rai, respectively, recorded on dated 2.12.2005 in S.T. No. 187/1999 delivered by the Additional Sessions Judge, FTC-IX, Giridih. The said judgment has been challenged before this Court in Cr. Appeal No. 1510 of 2005. The appellants have been convicted by the learned Sessions Judge for R.I. for a period of 7 years and one year under Section 307/149 of the IPC and Section 323 I.P.C., respectively. 2. The learned counsel for the appellants submits that the appellant Nos. 3 and 4 intend to contest the on-going Panchayat Election from Gundri under Dhanwar Block where the appellant No.3 wants to contest the poll for the post of Panchayat Sadasya whereas, appellant No. 4 wants to contest the poll of Member of Zila Parishad. It has further been alleged that the notification for the said Election has already been notified by the Election Commission. The nomination has already been filed. The appellants have to produce the order of stay of conviction during the pendency of the appeal and the scrutiny of the nominations are still to be done. 3. The learned counsel for the appellants further submits that the appellant Nos. 3 and 4 have filed a compromise petition before this Court by way of I.A. No. 2500/2010 and the informant was also convicted by the Trial Court in cross-case under Section 323 of the IPC and the matter has already been compounded in the appeal. As the matter has already been settled between the parties, the conviction may be suspended. 4. The learned counsel appearing for the State refuted the contention and contended that the compromise can only be taken into account when there is compoundable offence and if the offence is not compoundable, the Court has no power to entertain the compromise and the conviction cannot be set aside on that ground. 5. The learned counsel for the appellants relied upon the judgments of Navjot Singh Sidhu vs. The State of Punjab and Am. reported in 2007(1) JLJR (SC)233 and Central Bureau of Investigation, New Delhi vs. M.N. Sharma, reported In (2008)8 SCC 549 . 5. The learned counsel for the appellants relied upon the judgments of Navjot Singh Sidhu vs. The State of Punjab and Am. reported in 2007(1) JLJR (SC)233 and Central Bureau of Investigation, New Delhi vs. M.N. Sharma, reported In (2008)8 SCC 549 . The learned counsel for the State also relied upon the judgment reported in (2009)5 SCC 787 [: 2009(2) JLJR (SC)165] (Sanjay Dutt vs. State of Maharashtra, through CBI, Bombay). 6. In the case of Navjot Singh Sidhu case (supra) the Hon'ble Bench of Hon'ble Apex Court comprising of Hon'ble Mr. Justice G.P. Mathur and Hon'ble Mr. Justice R.V. Raveendran has observed that the appellate court can suspend the 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 and the convict cannot obtain an order of stay of conviction and the said conviction can be resorted to in rare cases depending upon the special facts of the case. 7. In the case of Sanjay Dutt (supra), the Hon'ble Apex Court has also considered the case of Navjot Singh Sidhu case (supra) and it was observed that the appellant was a sitting Member of Parliament (M.P.) and he could have continued as an M.P. even after his conviction and sentence in view of Section 8(4) of the Representation of the People Act, 1951. The petitioner in Navjot Singh Sidhu case 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. In these special circumstances, the conviction was suspended. 8. In the case of Sanjay Dutt case (supra), the Hon'ble Apex Court, comprising a Bench of Hon'ble Mr. Justice K.G. Balakrishnan, C.J., Hon'ble Mr. Justice P. Sathasivam and Hon'ble Mr. Justice R.M. Lodha, JJ., in Paragraphs-10. 11 and 12 has clearly laid down, which run as under: "10. We have carefully considered the contentions advanced by the petitioner. The petitioner has been convicted for serious offenses. Of course, his conviction and sentence have been challenged before this Court in an appeal. Justice P. Sathasivam and Hon'ble Mr. Justice R.M. Lodha, JJ., in Paragraphs-10. 11 and 12 has clearly laid down, which run as under: "10. We have carefully considered the contentions advanced by the petitioner. The petitioner has been convicted for serious offenses. 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. 11. The petitioner is a well-known f cine artist and because of his contribution to art and cinema he has got a 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, the petitioner's father was a Minister in the Union Cabinet. The petitioner is not a habitual criminal nor has it been brought to our notice that he had been involved in any other criminal case. 12. 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 the 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." 9. The Hon'ble Apex Court, as observed above, has not considered the case on merit and it was only held that if the offence is serious one, the conviction should not be suspended lightly by the Court and it should be suspended sparingly. 10. In the case of Sanjay Dutt, the accused was convicted under Sections 3 and 7 read with Section 25(1-A) and 25(1-B), Arms Act and sentenced to six years' R.I. and the appellant preferred the appeal before the Hon'ble Apex Court against 'the judgment of the Special Judge. 11. 10. In the case of Sanjay Dutt, the accused was convicted under Sections 3 and 7 read with Section 25(1-A) and 25(1-B), Arms Act and sentenced to six years' R.I. and the appellant preferred the appeal before the Hon'ble Apex Court against 'the judgment of the Special Judge. 11. In the instant case, the accused appellant has been convicted under Section 307 read with Sections 149, 147 of the IPC. Section 307 IPC is definitely a serious offence but the learned counsel for the appellants pointed out that a compromise has taken place between the parties so the matter cannot be said to be a serious one. The proposition of law has been settled in a catena of decisions rendered by the Hon'ble Apex Court that if the offence is compoundable as provided under Section 320 and its Schedule, the offence can be compounded and the Court shall record the acquittal against the appellant or the accused, as the case may be. When the offence is not compoundable as provided under Section 320 and its Schedule, then the offence cannot be compounded. The Hon'ble Apex Court has also held that the Court cannot substitute the provision of law by its judgment. In the catena of decisions, the Hon'ble Apex Court has held that if the offence has been compounded in non-compoundable offence, the conviction cannot be set aside but the sentence can be reduced. 12. It has further been admitted that in the instant case, the appellants have been convicted under Section 307 read with Section 149 IPC and the offence is not compoundable under Section 320 and even if the compromise is taken into account, the conviction cannot be set aside in view of the catena of decisions of the Hon'ble Apex Court and the sentence can only be reduced. 13. In view of the facts and circumstances, as stated above, I find that the conviction of the appellants cannot be suspended and, therefore, the prayer made in the interlocutory applications is not sustainable. 14. Accordingly, I.A. Nos. 2500 and 2501 of 2010 stands disposed of. 15. The findings given in this order shall not affect the merit of this case at the time of hearing of this appeal.