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2011 DIGILAW 1223 (RAJ)

Banwar v. State of Rajasthan

2011-06-21

PRASHANT KUMAR AGARWAL

body2011
Hon'ble AGARWAL, J.—Heard the learned counsel for the parties. 2. Brief relevant facts for the disposal of this application are that the accused-applicant by judgment and order dated 31.8.2001, apart from other offences, has been convicted for the offence under Section 326/149 IPC in Regular Criminal Case No. 316/1993 by Judicial Magistrate, Kotputli, District Jaipur and sentenced for seven years rigorous imprisonment and a fine of Rs. 500/-, in default of payment of fine to further undergo three months simple imprisonment. Against this judgment and order dated 31.8.2011, the applicant filed Criminal Appeal No. 56/2001 which was dismissed by the Appellate Court vide judgment dated 16.8.2007 and the conviction and sentence passed by learned trial Court was maintained. The applicant filed S.B. Criminal Revision Petition No. 961/2007 before this Court and the sentence passed by learned Courts below was suspended by this Court vide order dated 25.10.2007 in S.B. Criminal Misc. Suspension of Sentence Application No. 55/2007. The applicant has filed this stay application with the averment that he was elected as Ward Member from Gram Panchayat Nagal, Panditpura, Kotputali, District Jaipur and his election to that post has been challenged by a contesting candidate by means of an election petition filed before the Court of District Judge, District Jaipur. His apprehension is that his election may be declared void on the ground that at the time of election, the applicant was disqualified to contest the election of Ward Member because he has been convicted for an offence by a competent Court and sentenced to imprisonment for more than six months. The applicant has made prayer that his conviction may be stayed otherwise there is likelihood that his election to the Ward Member may be set aside. In this case the accused-applicant along with co-accused has been held guilty of causing several simple and grievous injuries by blunt and sharp weapon in furtherance of their common object to more than on person. 3. The learned counsel for the applicant has submitted that if the conviction results into some disqualification the Court is competent to stay conviction. It has also submitted that the offence for which the applicant has been convicted and sentenced does not come within the purview of moral turpitude. 3. The learned counsel for the applicant has submitted that if the conviction results into some disqualification the Court is competent to stay conviction. It has also submitted that the offence for which the applicant has been convicted and sentenced does not come within the purview of moral turpitude. In support of his submission, the learned counsel has mainly relied upon the cases in Kanhaiya vs. State of Rajsthan : 2001(3) WLC (Raj.) 411, Navjot Singh Sidhu vs. State of Punjab & Anr. : AIR 2007 SC 1003 = RLW 2007(3) SC 2264 and Maqsood Khan vs. State of Rajasthan : 2007(1) Cr.L.R. (Raj.) 801. 4. On the other hand, learned Public Prosecutor by opposing the prayer made on behalf of the applicant has submitted that the applicant was disqualified for even contesting the election for the Ward Member and thus if the order of conviction is stayed by this Appellate Court, a disqualified person would continue to hold an elected office. 5. I have considered the submissions made by learned counsel for the respective parties, gone through the material made available to me and also the relevant case law, which is as follows : In the reading case of Rama Narang vs. Ramesh Narang & Ors. : (1995) 2 SCC 513 , the bench of three Hon'ble Judges of Apex Court has held that "Section 89(1) empowers the Appellate Court to order that the execution of the sentence or order appealed against be suspended under this provision is the execution of the sentence or the execution of the order. Order referred to in Section 389(1) must be an order capable of execution. An order of conviction by itself is not capable of execution under the Code. It is the order of sentence or an order awarding compensation or imposing fine or release on probation which are capable of execution and which, if not suspended, would be required to be executed by the authorities." The Hon'ble Supreme Court has further held that : "If the order of conviction is to result in some disqualification of the type mentioned in Section 267 of the Companies Act, a narrow meaning should not be given to Section 389(1) of the Code to bar the Court from grating an order staying operation of order of conviction in a fit case. In certain situations the order of conviction can be executable in the sense, it may incur a disqualification as in the instant case. In such a case the power under Section 389(1) of the Code could be invoked." The Hon'ble Supreme Court has also observed that : "While granting a stay 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 o such an order, it may do so and in doing so it may, if it considers it appropriate implore such conditions as are considered appropriate". It was also observed that : "In a situation where the order of conviction may incur a disqualification, as in this case, 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. No one can be allowed to play hide and seek with the Court; he cannot suppress the precise purpose for which he seeks suspension of the conviction and obtain a general order of stay and then contend that the disqualification has ceased to operate." The Hon'ble Supreme Court in the case of K.C. Sareen vs. CBI, Chandigarh : (2001) 6 SCC 584 , has held as under : "Power to suspend conviction should be exercised by the Appellate or Revisional Court in very exceptional cases having regard to all aspects including ramifications of such suspension. Merely because the convicted person files an appeal to challenge his conviction the Court should not suspend the operation of the order of conviction. The Court has a duty to look at the aspects including the ramifications of keeping such conviction in abeyance. The Hon'ble Supreme Court has also observed 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. The Hon'ble Supreme Court has also observed 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." It was also held that : "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 servant 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 that already shrunk confidence of the people in such public institutions besides demoralizing the other honest public servants who would either be the colleagues or subordinates of the convicted person. Hence, it is necessary that the court should not aid the public servant who stands convicted for corruption charges to hold public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level." In the case of Sanjay Dutt vs. State of Maharashtra : JT 2009(4) SC 611, the Hon'ble Supreme Court has held that : "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. The power of the Court under Section 389 Cr.P.C. shall be exercised only under exceptional circumstances." In this case although the Hon'ble Supreme Court found many circum-stances in favour of the applicant Shri Sanjay Dutt but even than the Court refused to suspend the conviction of the applicant on the premise that there is no exceptional circumstances for which the conviction may be suspended. In the case of Navjot Singh Sidhu vs. State of Punjab & Anr. : AIR 2007 SC 1003 , the Hon'ble Apex Court has held that : "The legal position is, therefore, clear that an appellate Court can suspend or grant stay of order 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 the 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." In that case, the Hon'ble Supreme Court found that the case of the applicant Navjot Singh Sidhu is of exceptional category and thus, the conviction of the applicant was stayed. In the case of State of Punjab vs. Deepak Mattu : 2008 Cr.L.J. 322, the Hon'ble Supreme Court has held that : "Possible delay in disposal of appeal and existence of arguable points not by itself be sufficient to grant suspension." The Hon'ble Division Bench of this Court in the case of Om Prakash vs. State of Rajasthan : 2008(1) Cr.L.R. (Raj.) 735, after relying upon various judgments of Hon'ble Supreme Court has held that : "For seeking suspension of conviction, the applicant is required to show special reasons and in our opinion the natural consequence of conviction cannot be a special reason. Natural consequence of conviction is to face the sentence, if not suspended by the order of the Court and to face the lawful consequence because of conviction. If the service rules have been framed for taking action against the convict then it is also a natural consequence of conviction, which empowers the employer to take action against the convict. Natural consequence of conviction is to face the sentence, if not suspended by the order of the Court and to face the lawful consequence because of conviction. If the service rules have been framed for taking action against the convict then it is also a natural consequence of conviction, which empowers the employer to take action against the convict. Legislature wisdom framed the rule to keep the convict out of job consciously, conscious of fact that convict out of job consciously, conscious of fact that convict may challenge his conviction by preferring appeal or revision as the case may be and appellate or revisional Court may suspend the conviction, yet has framed the rule that action against employee can be taken on employee's conviction irrespective of fact whether the conviction is subjudice before the appellate Court." It was also observed by the Division Bench that : "If only because of reason that the convict will be put to out of job and it will effect adversely to family of the convict and there is no chance of early disposal of convict's appeal by the appellate Court then in all cases, the Court will have to stay the conviction and that will made the rule under which action can be taken by the employer of public employment as redundant and in view of the Apex Court's decision given in Deepak Matuu's case above grounds are not sufficient to grant suspension of sentence." The Hon'ble Court has also observed that : "The service rules have been framed purposefully so that normally convict may not and should not continue in the service and, therefore, when legislature itself has framed the rules for taking action against convict then normally there is no reason for not allowing the Government to take action permissible by the service rules. It is necessary that public post must be occupied by clean persons. It is necessary that public post must be occupied by clean persons. If conviction is stayed so that a tinted, rather a convict may continue in job during period of appeal, which according to the petitioner himself may remain pending for several years and even for decades." It was also observed that : "Unblemished service record and chance of promotion itself cannot be ground for suspension of conviction in all the cases." In the case of Kanhaiya vs. State of Rajasthan : 2001(3) WLC (Raj.) 411, the Division Bench of this Court has held that : "A close look at Section 389(1) demonstrates that the Legislature provides for suspension of the rigour of the judgment of the trial Court pending disposal of appeal. There may be cases where conviction may not be of any effect pending the decision of appeal and the convict in such a case may only seek suspension of the execution of sentence. But there may be cases where conviction becomes disqualification unless it is ceased to operate. such a situation necessitates the suspension of conviction till the disposal of the appeal. It is well settled that once the conviction and sentence are set aside in appeal, the acquittal dates back to the date of conviction and it is wiped off from the date. When the order of conviction rendered by the trial Court does not attain finality during the pendency of the appeal and after the appeal is allowed the order of acquittal relates back to the date of the order of conviction than why should we consider the words 'order appealed against' incorporated in section 389(1) in a narrow sense as to exclude 'conviction'. Where the effect of order of conviction entails disqualification from contesting the election or termination from the services, the appellate Court on the specific request made in this regard by the convict, may suspend the conviction after assigning the reasons. Where the effect of order of conviction entails disqualification from contesting the election or termination from the services, the appellate Court on the specific request made in this regard by the convict, may suspend the conviction after assigning the reasons. The appellate Court may suspend the order of conviction under Section 389(1) Cr.P.C. where it is capable of execution." The learned Single Bench of this Court in the case of Maqsood Khan vs. State of Rajasthan 2007(1) Cr.L.R. (Raj.) 801 was pleased to stay the operation of conviction passed by the learned trial Court on the premise than the servi-ces of the accused have still not been terminated and the nature of offence prima facie does not appear to be an offence relating to moral turpitude. 6. Taking into consideration the overall facts and circumstances, of the case, I am of the view that the present case is not of such a nature in which the discretion should be exercised in favour of the applicant. According to Clause (g) of Section 19 of the Rajasthan Panchayati Raj Act, 1994 a person is disqualified to contest election as a Panch or a Member of Panchayati Raj Institution if he has been convicted of any offence by a competent Court and sentenced to imprisonment for 6 months or more, such sentence not having been subsequently reversed or remitted or the offender pardoned. When the legislature has though fit to disqualify such a convicted and sentenced person seeking himself to be elected on a public post, then such a person should not be allowed to hold such an elected office. It is in the interest of public that such a tainted person does not hold such an elected office. If due to some disqualification prescribed by law a person is not entitled to be elected on a public post, then not only his election is liable to be declared void but also his nomination paper itself is liable to be rejected. If such a disqualified person's nomination is rejected or his election is set aside by a competent court then in my view, it cannot be said that such person shall suffer irreparable loss. Such person must first come clean and then contest election or hold an elected office. If such a person is allowed to continue to hold such an elected office, it may damage the public faith. Such person must first come clean and then contest election or hold an elected office. If such a person is allowed to continue to hold such an elected office, it may damage the public faith. If the applicant really wants to serve the general public, it is not necessary hat he should hold elected office, he can do it without holding any such office also. It was for the applicant to plead and prove existence of such special reasons so as to keep the conviction in abeyance. I do not find any special reason for stay of conviction of the applicant from the facts of the case and if look into ramifications of stay of conviction of applicant, I find from the facts that consequence of stay of conviction may damage the public faith. So far as the case of Navjot Singh Sidhu (supra) is concerned, in that case the Hon'ble Supreme Court found the case of exceptional category but in the present case the applicant has measurably failed to show any exceptional circumstances upon which the prayer made on behalf of the applicant may be accepted. 7. Consequently, the application for stay of conviction being devoid of any substance is, hereby, dismissed.