JUDGMENT : 1. The matter is extensively heard on merits. Learned advocate for the parties jointly submit that the matter may be finally disposed of. Hence, Rule returnable forthwith. Learned APP Mr. Dharmesh Devnani waives service of Rule on behalf of the respondent – State. 2. The applicant, who happens to be original accused No.17 along with co-accused persons in Sessions Case No.24 of 2017 came to be convicted by the judgment and order dated 25.07.2018 passed by the learned 5th (Ad hoc) Additional Sessions Judge, Mehsana at Visnagar. The conviction is recorded for the offences punishable under Sections 147, 148, 149, 427 and 435 of the Indian Penal Code (“IPC” for short). The applicant and other co-accused persons are sentenced to undergo simple imprisonment of 2 years and to pay a fine of Rs.50,000/- each, with default sentence of 3 months simple imprisonment. 3. The applicant and other co-accused persons assailed their conviction by filing Criminal Appeal No.1135 of 2018 under Section 374 of the Code of Criminal Procedure (“Code” for short). The appeal is admitted by this Court on 08.08.2018. 4. The applicant also preferred Criminal Misc. Application No.1 of 2018 in Criminal Appeal No.1135 of 2018 under Section 389 of Code. Following substantial prayer was made: “A. That this Hon'ble Court may be pleased to admit and allow this application and be pleased to order suspension of conviction and sentence imposed by the Fifth (Adhoc) Additional Sessions Judge, Mahesana at Visnagar in Sessions Case No. 24 of 2017 and further be pleased to enlarge the applicant on bail bail pending the hearing and final disposal of the appeal.” 5. The Coordinate Bench of this Court passed following operative order on 08.08.2018: “5. Therefore, pending appeal, judgment and order of sentence imposed upon the applicant dated 25.07.2018 passed by the learned 5th (Ad-hoc) Additional Sessions Judge, Mahesana, Visnagar in Sessions Case No.24 of 2017 is hereby suspended and the applicant shall remain on bail pending hearing of the appeal on the same terms and conditions as were imposed at the time of grant of regular bail pending trial but, by furnishing fresh bail bond of Rs.20,000/- to the satisfaction of the learned Sessions Court concerned and on further conditions to (i) attend hearing of the appeal regularly and (ii) pay the fine amount within 7 days from today, if not paid till date. 6. 6. Accordingly, present application is allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted.” 6. Thus, it is clear from the order that though the prayer was to suspend the conviction and sentence imposed on the applicant, the Coordinate Bench, suspended the sentence and released the applicant on bail during the pendency of Criminal Appeal. 7. The applicant has preferred present application for the following prayers: “A. That this Hon'ble Court may be pleased to admit and allow this application and be pleased to order suspension and stay of his conviction imposed by the Fifth (Adhoc) Additional Sessions Judge, Mehsana at Visnagar in Sessions Case No. 24/2017 pending the hearing and final disposal of the appeal.” 8. The respondent State has desisted present application by filing affidavit-in-reply along with annexures and further affidavit with annexures. There is no rejoinder or reply to these affidavit and further affidavit respectively by the applicant. 8. Mr. I.H. Saiyed, learned advocate for the applicant submitted that the conviction is not executable save and except in certain cases as held by the Hon'ble Supreme Court in the case of Rama Narang Vs. Ramesh Narang and others reported (1995) 2 SCC 513 . It is his submission that the applicant is aspiring candidate to contest the ensuing Loksabha Election, but he cannot contest the Election as under Section 8(3) of the Representation of the People Act, 1951 (“R.P. Act” for short). He stands disqualified to contest the election as the conviction of 2 years is imposed on him. He further submitted that broad features of the case while considering the application for stay of conviction is required to be appreciated as has been held by the Hon'ble Supreme Court in the case of Navjot Singh Sidhu Vs. State of Punjab and Anr. reported in 2007 SCC 574 . He led specifically emphasis on paras 6, 7, 8 and 18 of the judgment. In his submissions, the prosecution examined in all 26 witnesses but none of them is naming or attributing any role to the applicant. He invited attention of the Court to the reasons recorded by the learned trial Judge and submitted that the conviction is recorded on the basis of guidelines issued by the Hon'ble Supreme Court in the case of Destruction of Public and Private Properties, in RE Vs. State of Andhra Pradesh and Others reported in (2009) SCC 212. He invited attention of the Court to the reasons recorded by the learned trial Judge and submitted that the conviction is recorded on the basis of guidelines issued by the Hon'ble Supreme Court in the case of Destruction of Public and Private Properties, in RE Vs. State of Andhra Pradesh and Others reported in (2009) SCC 212. He submitted that the learned trial Judge could not have recorded the conviction on the basis of evidence of this guideline, more particularly, when the applicant was not tried for any offence under the Prevention of Damage to Public Property Act, 1984. He submitted that original complainant (P.W.4) – Sureshbhai Aambubhai Vanal does not identify the applicant, while it is clear from the testimonies of P.W.6 and P.W.7 that their evidence is hearsay evidence. He further submitted that Vasantbhai, who happens to be P.A. of P.W.25, MLA whose office was vandalized and damaged, was present when the incident was happened, but the prosecution has not examined him as witness. It his submissions that the evidence of P.W.1, P.W.8, P.W.10 and P.W.25 is hearsay evidence as they were not present when the incident had happened. He submitted that it is clear from the evidence of P.W.26, Investigating Officer that though the statement under Section 161 of independent witnesses were recorded, they were neither cited nor examined during the trial. He submitted that the photographs and newspaper cutting which are produced by the respondent along with further affidavit, whose deponent was not Investigating Officer, are not part of the evidence of the case and therefore, they cannot be taken into account while considering the present application. He vehemently submitted that the present case against the applicant is a case of no legal evidence. The applicant has more fair chance of earning acquittal in the appeal. The applicant would not be able to contest the ensuing Loksabha election in view of Sections 7 and 8 of the Representation of the People Act, 1951. He, therefore, urged that considering the nature of evidence against the applicant, the conviction may be stayed / suspended during pendency of Criminal Appeal. 9. Learned counsel for the respondent has submitted gist of his oral submissions by way of written submissions. Written submissions are reproduced infra verbatim. It is submitted that the present application to stay the order of conviction is not maintainable. 9. Learned counsel for the respondent has submitted gist of his oral submissions by way of written submissions. Written submissions are reproduced infra verbatim. It is submitted that the present application to stay the order of conviction is not maintainable. Applicant had sought the very same prayer to stay conviction which was not granted by the learned Single Judge. In that view of the matter, present application for the same relief is not maintainable as the non-granting of stay against conviction has attained finality. It is submitted that the present application amounts to seeking review or modification of the order passed by the Hon’ble High Court on 08.08.2018, and that therefore, under the provisions of Criminal Procedure Code, the application is not maintainable. That it is submitted that there is no change of circumstances in any manner after this Hon’ble Court had passed the order on 08.08.2018. It is stated by the Applicant in the present application that he wants to contest Loksabha Election. It is submitted that 16th Loksabha was constituted in June 2014. The term of the elected member was 5 years. These 5 years term comes to end in June 2019. It is known to everyone that general election of Loksabha (House of People) will be held in the month of April-May, 2019. Declaration of election program does not make any change. The material and evidence placed by the Applicant - convict clearly establish the presence of Applicant - convict no 17 in the violent mob who were armed with sticks and as per case of prosecution proved through prosecution witness No. 4, 6 & 7 they had suffered various injuries on different parts of body including forehead and other vital parts of body. The Applicant - convict was found present in the mob since beginning of rally and the Applicant - convict handed over their memorandum for including patidaar community in the reserved category i.e. other backward class to prant Visnagar. Thereafter as per the case of prosecution, the mob which included Applicant - convict went to the office of prosecution witness No 25 Mr. Rushikesh Patel to hand over the memorandum to him, however as he was not found present in the office, the mob vandalised and ransacked the office of this MLA and caused damage. Furthermore, the mob also set on fire a motor car parked near the office of MLA. Rushikesh Patel to hand over the memorandum to him, however as he was not found present in the office, the mob vandalised and ransacked the office of this MLA and caused damage. Furthermore, the mob also set on fire a motor car parked near the office of MLA. It clearly appears that there was common object and the common intention of the mob, which was to cause damage by mischief etc., to the person and property of a particular party. Evidence of prosecution witness No. 4 as well as police officers who were present at the scene of occurrence while discharging their duty of bandobast, have also implicated Applicant - convict and that therefore, there is sufficient legal material/evidence to substantiate and fortify the judgment of ld. Sessions Judge. As such in the present application, it is not required to minutely assess the material of evidence more so, considering the reliance placed by the Applicant – convict himself on the judgment reported in the case of Navjot Singh Sidhu vs. State of Punjab, reported in (2007) 2 SCC 754. The Applicant - convict has involved himself ever since he started movement/agitation in the name of PAAS (Patidaar Anamat Andolan Samiti) in two complaints bearing No.CR I 90/ 2015 Registered with DCB Police station Ahmedabad for offences punishable under sections 121A, 124A, 120B of I.P.C. and Complaint bearing No. CR I 135/2015 registered with Amroli Police Station for offences punishable under sections 121A, 115, 201 of I.P.C.. Both the complaints are placed for consideration of this Hon’ble court which clearly demonstrate that the Applicant - convict has, at every moment, instigated persons gathered in his movement and has also made inflammatory speeches. Both the complaints at the relevant point of time, were challenged by preferring petition for quashing. However, this Hon'ble court vide order dated 01.12.2015, passed in Special criminal application No 6330 of 2015 and vide order dated 27.10.2015 passed in Criminal Misc. Application No 19858 of 2015 respectively, partly allowed the petitions, but this Hon’ble court did not quash offences under sections 124A, 121A and 115. Thereafter, in both the complaints, the Applicant is charge sheeted. The Applicant was granted bail in the said complaints vide order dated 08.07.2016, in Criminal Misc Application No. 6440 of 2016 on an undertaking given by the Applicant, which reads as under. (pg. Thereafter, in both the complaints, the Applicant is charge sheeted. The Applicant was granted bail in the said complaints vide order dated 08.07.2016, in Criminal Misc Application No. 6440 of 2016 on an undertaking given by the Applicant, which reads as under. (pg. 157 of Affidavit in reply) “a. That the applicant, if granted discretionary reliefs, shall continue to agitate the grievances of the Patidar Community without indulging directly or indirectly into any activity which may amount to an offence inviting criminal prosecution. b. That the applicant, if granted discretionary reliefs, shall not do or indulge in any acts or activities disturbing the law and order across the State. c. That the applicant, if granted discretionary reliefs, shall continue the agitation for reservation on behalf of the Patidar community in a peaceful and democratic manner and shall not indulge in any acts or activities instigating the public at large in any manner whatsoever and shall also maintain public peace. d. That the applicant, if granted discretionary reliefs, shall abide by all the conditions imposed by this Hon'ble Court and shall not breach any of such conditions as may be imposed by this Hon'ble Court.” Even thereafter, between 08.07.2016 to 08.08.2018, the Applicant had involved himself in the following complaints:- Sr. No. C.R. No. Police Station Under Section 1. II-3032 of 2017 Tankara Police Station 135(3) of Gujarat Police Act 2. I-120 of 2017 Patan City Police Station 395, 427, 423, 504, 506(2) of Indian Penal Code 3. II-137 of 2017 Mansa Police Station 143, 145 & 188 of Indian Penal Code 4. I-270 of 2017 Malviyanagar 143, 188 of Indian Penal Code 5. II-851 of 2017 Sarthana Police Station 36(C), 72(2), 134 of GP Act 6. 96 of 2017 DBC Ahmedabad Police Station 143 of Indian Penal Code and 135, 149 of GP Act. 7. II-325 of 2017 Bopal Police Station 188 of Indian Penal Code 8. II-1 of 2018 Shinor Police Station 188 of GP Act, 135(3) 9. II-4 of 2018 Dholka Town Police Station 188, 171(G) and 134, 36(C), 72(2) of GP Act. 10. II-20 of 2018 Varacha Police Station 143, 145, 149, 152, 341, 186 of Indian Penal Code 11. II-4 of 2018 Chansama Police Station 188, 114 of Indian Penal Code 12. II-9 of 2018 Sidhpur Police Station 188, 114 of Indian Penal Code 13. II-4 of 2018 Dholka Town Police Station 188, 171(G) and 134, 36(C), 72(2) of GP Act. 10. II-20 of 2018 Varacha Police Station 143, 145, 149, 152, 341, 186 of Indian Penal Code 11. II-4 of 2018 Chansama Police Station 188, 114 of Indian Penal Code 12. II-9 of 2018 Sidhpur Police Station 188, 114 of Indian Penal Code 13. II-2 of 2018 Santrampur Police Station 188, 114 of Indian Penal Code 14. II-3006 of 2018 Surendranagar City B Div Police Station 37(3) of GP Act 15. II-3003 of 2018 Dhangdhra Taluka Police Station 37(3), 135 of GP Act 16. II-4 of 2018 Panch A Div Police 36(C), 72(2) Station and 134 of GP Act. 17. II-3003 of 2018 Vadali Police Station 188, 114 of Indian Penal Code The above referred complaints brought into incident when Gujarat state assembly elections were to happen and during that period, the Applicant gave inflammatory, instigating and violent speeches by attendance and showing disrespect to political leaders including women and also making insensitive comments on the issue like Barbari Masjid and also such type of remarks for two different communities. Above referred utterances made by the Applicant were elaborately and extensively read on behalf of the Respondent State and as the same are not worthy of being reproduced, the same are not set out hereunder, but the Hon’ble court is requested to consider the same. This clearly amounts to violating and breaching undertaking given by the Applicant and all these being considered together, are sufficient for not considering prayer made by the Applicant as not only from the judgment of conviction, but also considering above said antecedents of the Applicant, no case is made out which can be considered as an exceptional or a rare case as required under the provisions of the code for the grant of stay against the conviction. That the conviction of the Applicant is for a period of 2 years. The conviction of appellant for 2 years straightway disqualifies the Applicant to contest election as per of the provision contain under Section 8(3) of the Representation of People Act, 1951. It is submitted that the Applicant has attracted disability to contest the election on the day when the judgment was pronounced by the learned Additional Sessions Judge on 25.07.2018 and when the Applicant was not granted the stay against the judgment and order of conviction by this Hon’ble Court. It is submitted that the Applicant has attracted disability to contest the election on the day when the judgment was pronounced by the learned Additional Sessions Judge on 25.07.2018 and when the Applicant was not granted the stay against the judgment and order of conviction by this Hon’ble Court. Thus, the Applicant stood disqualified to contest the election on 25.07.2018 itself, when learned Sessions Judge, Visnagar convicted him and sentenced him to suffer imprisonment of 2 years and when this Hon’ble High Court did not grant the stay against conviction by passing the order on 08.08.2018 while admitting the appeal and granting the stay against order of sentence. That no fundamental right is violated in any manner, as right to contest the election is neither fundamental right nor common law right. Right to contest the election flows from provisions of the Representation of People Act, 1951 and the Constitution of India. The Representation of People Act, 1951 has made provision to disqualify the person to contest election in Section 8(3) of the Representation of People Act, 1951. In a habeas corpus petition being Special criminal application No 5607 of 2015 which was filed by a friend of the Applicant against the alleged detention of the Applicant by Police authorities, this Hon'ble court was pleased to dismiss the said petition vide order dated 01.04.2016, with the observations, which read as under: “10.1.1 On going through the averments made in the petition and the subsequent affidavits filed by the petitioners we are of the opinion that the petitioners have not come with accurate facts and even ample opportunities were given but still the said allegations are not properly explained by the petitioners. The so called ‘Surcharged atmosphere’ as claimed by Mr. Mangukiya, learned advocate for the petitioners whether already existed or whether it was created by the petitioners and their accomplices is a matter of doubt. Considering the overall facts and circumstances of the case, we have come to the conclusion that the petitioners acted in haste and without collecting ample information about the whereabouts of respondent no. 7 on 22.09.2015. We do not see any reason or logic in the petitioners creating such a panic when there was no emergent situation. The petitioners definitely could have waited for the court to function next day instead of rushing with this petition at 01.30 to 02.00 am on 23.09.2015. 7 on 22.09.2015. We do not see any reason or logic in the petitioners creating such a panic when there was no emergent situation. The petitioners definitely could have waited for the court to function next day instead of rushing with this petition at 01.30 to 02.00 am on 23.09.2015. It is no doubt true that the doors of the Court are open for each and every litigant but the same should not be in the case of frivolous or luxury litigations or publicity stunt litigations”. 10.3.1. ...The alleged story of abduction of the corpus by the police was not proper inasmuch as even if the say of the petitioners is accepted, the corpus did not have any mobile at the relevant time when the police cordoned the car in which he was travelling. Merely because they were unable to contact the corpus, considering the tense surcharged situation prevailing at the relevant time, the petitioners without giving a second thought rushed with this petition. In fact it can be said that their conclusion of the corpus having been abducted by the police authorities was erroneous and as the assumption was wrong, they delved on the wrong path by filing this petition unnecessarily without verifying the correct facts. It may be noted that the entire chaos happened because of an imaginary situation created by the petitioners as per their convenience and suitability”. “13. In view of the above directions, we dismiss the writ petition and impose Rs. 5000/- cost upon the petitioners. The sealed cover at Flag ‘D’ containing the covers tendered by Advocate General and the statement of Mr. Hardik Patel has been taken on record of the case. Rule is discharged”. The aforesaid observations of this Hon’ble Court in the Habeas Corpus proceedings referred to above, speak volumes about the conduct of the Applicant herein and only on the basis thereof, the Applicant does not deserve any relief/s as prayed for in the captioned proceedings or otherwise. In view of the above, this Hon’ble Court having once exercised powers under Section 389(1) of the Criminal Procedure Code while admitting the appeal, may not again review its order or exercise the said powers in the present 2nd application with the same prayer. PART III: Judgments Cited at the Bar on behalf of the State Government. In view of the above, this Hon’ble Court having once exercised powers under Section 389(1) of the Criminal Procedure Code while admitting the appeal, may not again review its order or exercise the said powers in the present 2nd application with the same prayer. PART III: Judgments Cited at the Bar on behalf of the State Government. In support of the challenge against the maintainability of the captioned application filed by the Applicant herein for the second time in succession (since he was not granted relief of stay against his conviction in his first application though prayed for, which was disposed of on 08.08.2018), the State relies upon the following two judgments: (1) Kalyan Chandra Sarkar vs. Rajesh Ranjan, reported in (2005) 2 SCC 42 – rel. paras 19 and 20. (2) State of M.P. vs. Kajad, reported in (2001) 7 SCC 673 – rel. para 8. It is submitted that for one to succeed in an application filed under section 389(1) of the Code, he should satisfy and establish the following five tests, which should be borne out from the application itself. (i) There should be a rare and exceptional case for the grant of stay against conviction. (ii) There should be special and compelling circumstances in justification for the grant of stay against conviction. (iii) There should be irreversible consequences leading to injustice and irretrievable damages in the event of non-grant of stay against conviction. (iv) There should be no criminal antecedents barring the conviction in question. (v) There should be a prima-facie case on merits, e.g. the judgment of conviction is based on no evidence or against the weight of evidence, which may be established without conducting a detailed inquiry into the merit of the case. In support of the aforesaid proposition, reliance has been placed by the State on the following judgments: (3) B. R. Kapoor vs. State of T.N., reported in (2001) 7 SCC 231 – rel. paras 1 to 9, 31 to 34, 40, 44, 45, 58, 59, 74. (4) Rama Narang vs. Ramesh Narang, reported in (1995) 2 SCC 513 – rel. paras 4, 11, 15, 16, 19. (5) State of Maharashtra vs. Gajanan, reported in (2003) 1 SCC 432 – rel. paras 3 to 5. (6) Union of India vs. Atar Singh, reported in (2003) 1 SCC 434 – rel. paras 2 and 3. (4) Rama Narang vs. Ramesh Narang, reported in (1995) 2 SCC 513 – rel. paras 4, 11, 15, 16, 19. (5) State of Maharashtra vs. Gajanan, reported in (2003) 1 SCC 432 – rel. paras 3 to 5. (6) Union of India vs. Atar Singh, reported in (2003) 1 SCC 434 – rel. paras 2 and 3. (7) K. Prabhakaran v/s T. Jayarajan, reported in (2005) 1 SCC 754 – rel. paras 39 to 44, 47, 53, 54. (8) Ravikant S Patil vs. S.S. Bagali, reported in (2007) 1 SCC 673 – rel. paras 10, 11, 15, 16.4 and 16.5. (9) State of Maharashtra vs. Balkrishna Dattatraya, reported in (2012) 12 SCC 384 – rel. paras 9 to 18. (10) Jalal Ahmad Mazumdar vs. State of Assam, reported in (2008) Cri.L.J. 1235 – rel. paras 1 and 13 to 22. (11) Sanjay Dutt vs. State of Maharashtra, reported in (2009) 5 SCC 787 – rel. paras 2 to 14. (12) Lily Thomas vs. Union of India, reported in (2013) 7 SCC 653 – rel. paras 7, 33, 34, 36. (13) Joti Basu vs. Debi Ghosal, reported in (1982) 1 SCC 691 - rel. para 8. For ready reference, relevant observations of the Apex Court in some of the aforesaid judgments, are set out hereunder, which would clearly suggest that the captioned application of the Applicant herein deserves to be dismissed in limine, as the Applicant herein has miserably failed to satisfy five tests referred to above. (a) In case of State of Maharashtra vs. Gajanan (supra), the Apex Court observed as under: “… it is only in very exceptional cases that the Court should exercise such power of stay. ……. the High Court had 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. ….” (b) In case of Union of India vs. Atar Singh (supra), the Apex Court observed as under: “2. …the High Court has suspended conviction solely on the ground that non-suspension of conviction may entail removal of the delinquent government servant from service. 3. ….” (b) In case of Union of India vs. Atar Singh (supra), the Apex Court observed as under: “2. …the High Court has suspended conviction solely on the ground that non-suspension of conviction may entail removal of the delinquent government servant from service. 3. …we have no hesitation in coming to the conclusion that the High Court has mechanically passed the order by suspending the conviction. ….” (c) In case of Ravikant S. Patil (supra), the Apex Court observed 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 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 nonexistent, but only non-operative. ….” “16.5 All these decisions, while recognizing 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.” (d) In case of State of Maharashtra vs. Balkrishna Dattatraya (supra), it was observed by the Apex Court as under: “15. 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. The Court has to consider all the facts as are pleaded by the applicant, in a judicious manner and examined whether the facts and circumstances involved in the case are such, that they warrant such a course of action by it. The court additionally, must record in writing, its reasons for granting such relief. 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.” (e) In case of Jalal Ahmad Mazmudar (supra), Hon’ble Gauhati High Court observed as under: “14. Mr. The court additionally, must record in writing, its reasons for granting such relief. 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.” (e) In case of Jalal Ahmad Mazmudar (supra), Hon’ble Gauhati High Court observed as under: “14. Mr. Bhattacharjee passionately pleads that the petitioner is a social worker and being an important functionary of the Congress at the grass-root level, when the petitioner sought to participate in the ensuing Panchayat elections, the learned Sessions Judge ought to have allowed the petitioner's prayer, for, refusing to allow the prayer may, according to Mr. Bhattacharjee, cause irreparable loss if, on hearing of the appeal, the appeal is, eventually, allowed. When the consequences following the refusal to stay the operation of an order of conviction is so serious, the law, as laid down in Navjot Singh Sidhu (supra), warrants, according to Mr. Bhattacharjee, that the appellate court, in the present case, ought to have stayed the order of conviction. 18. …….. In such a case, merely because of the fact that a convicted person intends to contest an election, can the court suspend the order of conviction. Such a course would, if adopted, not only bring convicted persons into the field of politics, but make it more convenient for a convicted person to contest an election so that the order of conviction passed against him gets, automatically, suspended. Such a situation would not be conducive for a society, which promises to be governed by rule of law.” (f) In case of Sanjay Dutt (supra), the Apex Court observed as under: “6… It was argued that the conviction itself for the above offences is based on alleged confession made by the petitioner which was not strictly admissible under the law. It was also contended that the alleged possession of the weapon by the petitioner was much prior to the criminal conspiracy allegedly hatched by the other accused. … … 10…… 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. … … 10…… 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. 11. The petitioner is a well known 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, petitioner's father was Minister in the Union Cabinet. The petitioner is not a habitual criminal nor has it been brought to our notice that he had 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 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 CrPC shall be exercised only under exceptional circumstances.” It is pertinent to note that the judgment of the Apex Court rendered in case of Navjot Singh Sidhu vs. State of Punjab, reported in (2007) 2 SCC 754 cannot be made applicable to the instant case inasmuch as in the said case, the accused had no criminal antecedent unlike in the instant case and the facts involved therein provided for a rare and special case wherein the accused on conviction, resigned as a Member of Parliament to seek a fresh mandate, though he could have easily avoided incurring disqualification by virtue of the erstwhile provisions of sub-section (4) of section 8 of the R.P.Act, 1951. This was done by the accused in the said case so as to set the moral standard in the society by seeking fresh mandate from the people. Thus, the facts and circumstance in the said case are even remotely not comparable with those present in the instant case. As regards the inquiry into the merit of the case, the Apex Court observed as under in the said case. “10. Though for the purpose of decision of the prayer made by the appellant for staying or suspending the order of conviction, it is not necessary to minutely examine the merits of the case … …” 10. Mr. Sayd, learned counsel for the applicant in rejoinder submitted that the prayer for stay of conviction was made and argued in Criminal Misc. Application No.1 of 2018. He submitted that the issue of stay for conviction was not discussed by the Court in order dated 08.08.2018. He therefore, submitted that applicant cannot be prevented from making present application for stay of conviction. In this context, reliance placed upon the decision of Hon'ble Supreme Court in the case of Rama Narang (Supra) and submitted that order of conviction is not executable in certain eventualities and that now, when the applicant wants to contest ensuing Loksabha election, present application for stay of execution of conviction is necessitated. He submitted that the decision in the case of State of M.P. Vs. Kajad (Supra) and Kalyan Chandra Sarkar (Supra) are not applicable to the present case as in those cases issue was of successive bail application. 11. He submitted that the decisions of in the case of State of Maharashtra (Supra) and B.R. Kapur (Supra) are not applicable to the facts of the case as in those cases, the applicant was involved in the offence of Prevention of Corruption Act. He placed reliance upon Unreported order dated 29.04.2016 rendered by the Hon'ble Supreme Court in Criminal Appeal No.418 of 2016 in the case of Naranbhai Bhikhabhai Kachchadia Vs. State of Gujarat and submitted that the Hon'ble Supreme Court had considered exceptional consequences of disqualification of the appellant from representing his Constituency in Parliament from six years amongst other factors to quash the prosecution against the appellant. 12. Learned counsel for the respondent has at the outset, submitted that the present application is not maintainable. According to his submission, the prayers made in Criminal Misc. 12. Learned counsel for the respondent has at the outset, submitted that the present application is not maintainable. According to his submission, the prayers made in Criminal Misc. Application No.1 of 2018 and prayer made in present application are identical. He would submit that in the Criminal Misc. Application No.1 of 2018, the applicant had prayed for suspension of conviction and sentence. This Court by an order dated 08.08.2018 instead of suspending / staying the conviction, has suspended the sentence and released the applicant on bail during the appeal. He further submitted that the applicant has already deposited Rs.50,000/- in the trial Court as fine, which is imposed on him by impugned judgment. He therefore, submitted that the applicant has already accepted his conviction. He therefore, submitted that the prayer for suspension / stay of conviction is rejected by this Court. The applicant therefore, now again renewed the prayer for stay / suspension of conviction in this application. Hence, he urged that present application may be dismissed on this ground alone. 13. The submission regarding the maintainability of the present application, in my view, does not deserves acceptance. In my considered view, this Court has to examine whether the case is made out for grant of stay / suspension of the conviction or not. In view of decision in the case Rama Narang (Supra), it is held as under: “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. 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 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 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 Code 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 (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.” 14. The decisions of the Hon'ble Supreme Court in the case of State of M.P. Vs. Kajad (Supra) and Kalyan Chandra Sarkar (Supra) are not applicable to the present case to dismiss present applicant on the ground of non-maintainability. 15. The decisions of the Hon'ble Supreme Court in the case of State of M.P. Vs. Kajad (Supra) and Kalyan Chandra Sarkar (Supra) are not applicable to the present case to dismiss present applicant on the ground of non-maintainability. 15. This Court has to examine the grounds canvassed in the present application for stay / suspension of conviction. The main grounds are as under: “A. That the present applicant is the aspiring candidate to contest the upcoming Loksabha Election for the Member of Parliament but due to the conviction imposed by the learned Sessions Judge and non-suspending and not staying of his conviction by the Hon'ble Gujarat High Court, he is unable to contest the upcoming Loksabha Election, 2019. B. That the applicant being the social activist and leader of the community wants to contest the upcoming Loksabha Election for Member of Parliament. It is stated that as per provisions of the Representation of the People Act, 1951, the applicant would not be able to contest the upcoming Loksabha Election due to his conviction. C. That by virtue of sections 8(3) read with section 7(b) of the Representation of the People's Act, 1951, the applicant shall not stand qualified to contest the upcoming Member of Parliament's Election. Therefore, the present applicant has been filed for seeking stay and suspension of conviction imposed by the impugned order. D. That the applicant has strong prima facie case on merits and is likely to be exonerated of the charges levelled against him and succeed in the appeal. F. That there is a possibility and likelihood of the impugned judgment and order of the Trial Court being set aside. The applicant relies upon all the contentions which he has incorporated in his memo of appeal (Criminal Appeal No. 1135 of 2018)at the time of arguing the present application. G. That if the order of conviction is not stayed and suspended, then the appellant will suffer irreparable loss and he being the person of public life, social activist and leader of community, his goal to serve the society at large by becoming Member of Parliament will ruin. G. That if the order of conviction is not stayed and suspended, then the appellant will suffer irreparable loss and he being the person of public life, social activist and leader of community, his goal to serve the society at large by becoming Member of Parliament will ruin. The applicant has all the chances to win the election and serve the society as the Member of Parliament.” H. That number of false and fabricated cases have been lodged against the petitioner on account of political vendetta by the ruling political party as the applicant is fighting for the cause of his community and led a reservation agitation for the induction of his community in reservation. Therefore all the criminal cases have been slapped upon him after he started the agitation or otherwise before the agitation, there was no criminal antecedent against the applicant.” 16. The observations of the Hon'ble Supreme Court as referred by the learned counsel for the respondent in para 4 of the written statement recording the scope and ambit of the powers of the Appellate Court under Section 389(1) of the Code to stay / suspend the sentence, this Court will have to consider the rival submissions made at bar in the context of the grounds on which stay of conviction is prayed for. 17. Bearing in mind the broad principles regarding stay / suspension of conviction, the grounds on which the applicant seeks stay of his conviction as mentioned in present application mentioned in the present application needs brief narration. 18. The applicant has stated in the present application that he is social activist and leader of community. He is aspiring candidate to contest upcoming Loksabha election for the Member of Parliament, however, he would not be able to contest Loksabha election in view of Section 3 read with Section 7(B) of the R.P. Act as his conviction is not stayed / suspended by this Court vide order dated 08.08.2018. 19. In order to succeed in the present application, as per settled proposition of law, the applicant has to make out an exceptional case to stay the conviction. As it has been held by the Hon'ble Supreme Court in many decisions that the stay of conviction not granted in an exceptional. Moreover, the applicant has to demonstrate that what irreparable and irreversible injury or harm is likely to ensue, if the conviction is not stayed. 20. As it has been held by the Hon'ble Supreme Court in many decisions that the stay of conviction not granted in an exceptional. Moreover, the applicant has to demonstrate that what irreparable and irreversible injury or harm is likely to ensue, if the conviction is not stayed. 20. The applicant has only submission in the present application that he being social activist and leader of his community aspire to contest ensuing Loksabha election. It is nowhere stated in the application that in the event, he is denied the opportunity to contest the election on account of his disqualification under Section 8(3) of the R.P. Act an irreversible harm is likely to be caused to him. At this juncture, this Court has to take note that the observations made by the Hon'ble Supreme Court in the case of Joti Basu (Supra), wherein the Hon'ble Supreme Court has held in para 8 that the right to elect is not a fundamental right nor a common law right. It is a pure and simple statutory right. 21. So far as contention of the learned counsel for the applicant that for the purpose of deciding present application, the principles of the cases are required to be considered and the evidence produced by the prosecution in the case comes within broad view of the case in view of the decision of the Hon'ble Supreme Court in the case of Navjot Singh Sidhu (Supra). It is proved that the Hon'ble Supreme Court has while considering the application under Section 389(1) of the Code in case of the Navjot Singh Sidhu (Supra), had adverted to the evidence, more particularly, medical evidence to satisfy itself whether the stay / suspension of conviction or not. In this context, the observation of the Hon'ble Supreme Court in para 7 are as under: “7. In this context, the observation of the Hon'ble Supreme Court in para 7 are as under: “7. In the present case the appellant has sought the stay or suspension of the order of conviction passed against him by the High Court on the ground that he was a sitting Member of Parliament on the date of the conviction and though he would not have incurred any disqualification and could have continued to remain as Member of Parliament by merely filing an appeal within three months and the protection would have enured to his benefit till the decision of the appeal but in order to set high standards in public life he immediately resigned from the membership of the Lok Sabha. He now wants to seek a fresh mandate from the electorate and wants to contest the election for membership of the Lok Sabha which is due to take place shortly on account of his resignation. Keeping in view the said fact the present application needs consideration.” 22. It is thus, very clear that while considering the application for stay / suspending the order of conviction, the Appellate Court is not required to minutely examine the merits of the case. In my considered view, if while considering the application under Section 389(1) of the Code, if the Appellant Court embark upon exercise of minutely examine the merits of the case and undertake the exercise of analysing evidence adduced by the prosecution in support of its case. It would definitely again to consider the appeal on merits. Ultimately and in observations of the Court on the basis of evidence, which placed on record, would have impact on the findings come out on the main appeal as and when it is taken up for disposal. It appears that considering the peculiar facts in Navjot Singh Sidhu (Supra) case as an exception, the Hon'ble Supreme Court thought it fit to examine the evidence more particularly, the medical evidence to satisfy itself whether the conviction which was recorded by the Delhi High Court against the applicant needs to be stayed or not. 23. Other aspect of the case of Navjot Singh Sidhu (Supra) is that the Hon'ble Supreme Court has also taken note of the conduct of the applicant, which was at the relevant time when he was held guilty by Delhi High Court was a sitting Member of Parliament. 23. Other aspect of the case of Navjot Singh Sidhu (Supra) is that the Hon'ble Supreme Court has also taken note of the conduct of the applicant, which was at the relevant time when he was held guilty by Delhi High Court was a sitting Member of Parliament. Upon being convicted, he immediately resigned as Member of Parliament. The Hon'ble Supreme Court has also taken note of the fact that at that relevant time, Section 8(4) of the R.P. Act did not require for Member either sitting Member of the Parliament to resign or such conviction to operate as disqualification. Since Mr. Navjot Sidhu wanted to contest seat which he had himself vacated pursuant to his conviction, he sought the stay of conviction. Considering such overall facts and conduct of the applicant, the Hon'ble Supreme Court had stayed the conviction. Sub-Section 4 of Section 8 of R.P. Act later on came to declared as ultra vires is not relevant for the purpose of deciding present application. 24. Learned advocate for the respondent has submitted that the applicant came to be released on bail under Section 439 of the Code in connection with CR I 90 of 2015 registered with DCB Police Station, Ahmedabad as well as offence registered as CR I 135 of 2015 with Amroli Police Station, Dist. Surat. While releasing the applicant on bail, one of the factors which is considered by the Court to file undertaking of the applicant. Said undertaking reads as under: “a. That the applicant, if granted discretionary reliefs, shall continue to agitate the grievances of the Patidar Community without indulging directly or indirectly into any activity which may amount to an offence inviting criminal prosecution. b. That the applicant, if granted discretionary reliefs, shall not do or indulge in any acts or activities disturbing the law and order across the State. c. That the applicant, if granted discretionary reliefs, shall continue the agitation for reservation on behalf of the Patidar community in a peaceful and democratic manner and shall not indulge in any acts or activities instigating the public at large in any manner whatsoever and shall also maintain public peace. d. That the applicant, if granted discretionary reliefs, shall abide by all the conditions imposed by this Hon'ble Court and shall not breach any of such conditions as may be imposed by this Hon'ble Court.” 25. d. That the applicant, if granted discretionary reliefs, shall abide by all the conditions imposed by this Hon'ble Court and shall not breach any of such conditions as may be imposed by this Hon'ble Court.” 25. He submitted that despite giving this undertaking, the applicant has continued his activity and after filing the undertaking as many as 17 cases are registered against him wherein charge-sheet is filed and the cases are pending in various Courts at different stages. 26. The applicant had also preferred Special Criminal Application (Quashing) No.6330 of 2015, which came to be decided by this Court vide CAV Common Judgment dated 01.12.2015 along other connected Special Criminal Applications. The applicant has also preferred Criminal Misc. Application (For Quashing and Set aside the FIR) No.19858 of 2015 for quashment of FIR registered with Amroli Police Staton, Surat. Both these petitions were partly accepted and investigation for the offences punishable under Section 124(A) and 121(A) were allowed to proceed. 27. It is, therefore, very clear that the despite having given undertaking in the Court, the applicant has involved in the criminal cases, wherein now charge-sheet is filed and now they are pending at various stages in different Courts. 28. The reference and reliance on the testimonies of witnesses and the nature and quality of their evidence, which the learned counsel for the applicant wants this Court to consider for the purpose of deciding present application, cannot be done as held by the Hon'ble Supreme Court in the various decisions. It is difficult to accept the submissions of the learned counsel for the applicant that conviction against the applicant is recorded on the basis of no legal evidence. A cursory glance at the evidence, which is adding by prosecution cannot be at least, at this stage, said to be an evidence which is not legal evidence. Whether the evidence adduced by the prosecution is legal evidence or acceptable evidence will be considered at the time of final hearing of the appeal. 29. Learned counsel for the applicant has not demonstrated in any manner that by denying an opportunity to contest the election on account of disqualification under Section 8(3) of the R.P. Act an irreversible, irrevocable damage is likely to be caused to the applicant, merely for arguing the conviction recorded against the applicant cannot be stayed. 29. Learned counsel for the applicant has not demonstrated in any manner that by denying an opportunity to contest the election on account of disqualification under Section 8(3) of the R.P. Act an irreversible, irrevocable damage is likely to be caused to the applicant, merely for arguing the conviction recorded against the applicant cannot be stayed. The powers as has been held by the Hon'ble Supreme Court invested in the Appellate Court under Section 389(1) to suspend or stay the conviction is required to be exercised with circumspection and caution. If such power is exercised in a casual mechanical manner or merely for asking, I am of the view that it would have serious impact on the public perception on the justice delivery systems and such order will shake public confidence in judiciary. The decisions of the Hon'ble Supreme Court in the case Naranbhai Bhikhabhai Kachchadia Vs. State of Gujarat has no applicability to the facts of the present case. In the said case, the appellant was acquitted by the trial Court of serious offence under Section 3(1)(x) of the Atrocities Act and convicted for the minor offence. Moreover, the appellant and the defecto complainant had entered into compromise. The Hon'ble Supreme Court therefore, quashed the prosecution on the appellant agreeing to pay Rs.5 Lakhs as compensation to the defecto complainant. In view thereof, I am of the view that the applicant has not made out any case to suspend and / or stay the conviction, which is recorded against him. 30. For the foregoing reasons, present application fails and is dismissed. Rule is discharged.