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2021 DIGILAW 249 (HP)

Pradeep Chaudhary v. State of Himachal Pradesh

2021-04-19

SANDEEP SHARMA

body2021
JUDGMENT : SANDEEP SHARMA, J. 1. By way of instant criminal revision filed under S. 397 CrPC, challenge has been laid to order dated 12.2.2021 passed by learned Additional Sessions Judge, Nalagarh, District Solan, in an application No.21/2021 filed in Cr. Appeal No. 21-NL/4 of 2021, titled Pardeep Chaudhary vs. State of Himachal Pradesh, whereby learned court below though suspended the sentence imposed upon the petitioner by learned Judicial Magistrate 1st Class, Court No.2, Nalagarh, District Solan, Himachal Pradesh vide judgment dated 14.1.2021 in Cr. Case No. 30/2 of 2013 titled state of HP vs. Mahesh Kumar and others, but rejected his prayer to stay the conviction recorded by learned court below in the aforesaid case. 2. For having bird’s eye view, certain undisputed facts as emerge from the record are that a police challan under Ss. 143, 341, 147, 148, 149, 353, 332, 324 and 435 IPC and Ss. 3 and 4 of Prevention of Damage to Public Property Act, came to be presented in the court of learned Judicial Magistrate First Class, Court No.2 Nalagarh, District Solan, against the accused persons including the petitioner, who at the relevant time was an elected member of legislative assembly in the State of Haryana. 3. Learned trial Court on the basis of evidence led on record by the prosecution, found the petitioner and other accused guilty of having committed offences punishable under Ss. 143, 341, 147, 148, 149, 353, 332, 324 and 435 IPC and accordingly, convicted and sentenced them as under: Sr. No. Section Duration of imprisonment Quantum of fine (in Rs.) Under Indian Penal Code 1. 143 6 months 5000 2. 147 2 years 10000 3. 148 3 years 10000 4. 324 3 years 10000 5. 332 3 years 10000 6. 341 1 month 500 7. 353 2 years 10000 8. 435 3 years 10000 Under Prevention of Damage to Public Property Act 9. 3 3 years 10000 10. 4 3 years 10000 4. Being aggrieved and dissatisfied with aforesaid judgment of conviction recorded by learned trial Court, petitioner preferred an appeal in the court of learned Sessions Judge, Solan camp at Nalagarh/Additional Sessions Judge, Nalagarh, District Solan, Himachal Pradesh. Alongwith aforesaid appeal, petitioner also filed an application under Section 389(2) CrPC praying therein to stay/suspend the sentence and conviction imposed/recorded by learned trial Court during the pendency of the appeal. Alongwith aforesaid appeal, petitioner also filed an application under Section 389(2) CrPC praying therein to stay/suspend the sentence and conviction imposed/recorded by learned trial Court during the pendency of the appeal. Learned Additional Sessions Judge below, vide order dated 12.2.2021, though suspended the sentence imposed by learned trial Court, subject to petitioner’s depositing entire fine amount, but refused to stay the conviction. In the aforesaid background, petitioner has approached this Court in the instant proceedings, praying therein to stay the conviction after setting aside aforesaid order passed by learned first appellate court to the extent prayer of the petitioner for staying the conviction has been declined. 5. Mr. B.C. Negi and Mr. N.S. Chandel, Learned senior counsel duly assisted by Mr. Vikram Thakur, Advocate, representing the petitioner, vehemently argued that the impugned order passed by first appellate court below rejecting the prayer to stay the conviction deserves to be set aside, being totally contrary to the law laid down by Hon'ble Apex Court. Learned senior counsel further argued that the court below, while considering the prayer made on behalf of the petitioner to stay the conviction, has failed to take note of the consequences which will follow in the event of conviction being not stayed. They further stated that on account of judgment of conviction passed by learned trial Court, petitioner has been rendered disqualified to remain as a Member of Legislative Assembly in terms of S.8(3)of the Representation of the People Act, 1951. He submitted that the refusal to stay the conviction by learned court below would not only stifle the voice of the electorate, which elected the petitioner in the year 2019 for five years, but in the event of appeal being allowed, petitioner would suffer irreparably because, in that event, the tenure of the petitioner as an MLA shall come to an end, for which he cannot be compensated subsequently. Lastly, learned senior counsel, while making this court peruse the evidence adduced by the prosecution, vehemently argued that the findings of learned trial Court with regard to involvement of the petitioner in the alleged crime, are not based on cogent and convincing evidence, rather, the learned trial Court has been merely swayed by the fact that the public property has been damaged in the alleged incident. Learned senior counsel argued that the evidence available on record, nowhere proves beyond reasonable doubt that the petitioner was a part of the unlawful assembly and he incited violence. Learned senior counsel further argued that the present is an “exceptional” case, where membership of the petitioner in the legislative assembly is at stake and as such, conviction in the case at hand deserves to be stayed. 6. Mr. Ashok Sharma, learned Advocate General, while supporting the impugned order passed by learned court below, contended that the judgment of conviction recorded by trial court is based on sound reasoning and evidence and it cannot be said that case of petitioner comes under purview of ‘exceptional’ case. He further argued that the offences committed by the petitioner being a Member of Legislative Assembly, not only show utter disregard of the petitioner to the rule of law but also reflects his criminal bent of mind. Learned Advocate General argued that the case of petitioner does not come within the ambit of ‘exceptional’ case because very purpose of Section 8(3) of the Representation of the People Act, 1951 is to prevent entry of persons, having criminal background, in the legislative bodies. Learned Advocate General further argued that otherwise also, pursuant to conviction and sentence imposed by learned trial Court, petitioner stands disqualified as a Member of Legislative Assembly in terms of S. 8(3) of the Representation of the People Act, 1951 and as such, it cannot be said that in case judgment of conviction is not stayed, serious consequences would follow. Learned Advocate General contended that the law is equal for all and no distinction can be carved out on the ground of petitioner being an elected Member of Legislative Assembly. Lastly, learned Advocate General contended that the revisional jurisdiction can only be invoked, where decision under challenge is grossly erroneous and findings recorded are based on no evidence but since in the case at hand, judgment of conviction is based on proper appreciation of law, no interference is called for, especially in exercise of power under revisional jurisdiction. 7. I have heard learned counsel for the parties and perused the material available on record. 8. 7. I have heard learned counsel for the parties and perused the material available on record. 8. Before ascertaining correctness and genuineness of the submissions made by learned senior counsel representing the petitioner, this court, at the first instance, deems it fit to deal with the scope of revisional and inherent jurisdiction of this Court under S.397 CrPC. 9. Bare perusal of S.397 CrPC, reveals that the court having revisional jurisdiction has power to call for and examine the record of any proceedings before any inferior criminal court situate within its local jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. Object of this provision is to set right a patent defect or an error of jurisdiction or law, however, there has to be a wellfounded error and it may not be proper or appropriate for court to scrutinize order which on the face of it appears to be passed on careful consideration of material available on record. Revisional jurisdiction can be invoked, where decision under challenge is grossly erroneous and there is no compliance with the provision of law. Besides above, court can also exercise revisional jurisdiction if it finds that the order sought to be laid challenge is based on no evidence and the court passing the same has ignored the material evidence. By now it is well settled norm that the revisional jurisdiction is not to be exercised in a routine manner rather court should keep in mind that the exercise of revisional jurisdiction should not lead to injustice ex-facie. Reliance is placed upon judgment rendered by Hon'ble Supreme Court in Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 , wherein Hon'ble Apex Court has held as under: “13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the Cr.P.C” 10. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon’ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality or sentence or order. The relevant para of the judgment is reproduced as under:- “8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order.” 11. Hon'ble Apex Court in the judgment (supra) has held that in case court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order. 12. Though, there is no disagreement inter se parties, that the appellate court below, while suspending the sentence imposed by trial court under S.389(2) CrPC, has also the power to stay the conviction recorded by trial court in exceptional cases but yet this Court deems it fit to take note of some of judgments rendered by Hon'ble Apex Court on the subject in recent times, wherein it has been held that stay of conviction by an appellate court is an exception to be resorted to in rarest of rare cases. 13. In Novjot Singh Sidhu vs. State of Punjab, (2007) 2 SCC 574 , Hon'ble Apex Court held that stay of order of conviction by appellate court is an exception to be resorted to in rarest of rare cases, after the attention of the appellate court is drawn to the consequences, which may ensue if conviction is not stayed. Hon'ble Apex Court in the judgment (supra) has held as under: “6. 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.” 14. Hon'ble Apex Court in Ravikant S. Patil vs Sarvabhouma S. Bagali (2007) 1 SCC 673 , while reiterating aforesaid law laid down in Navjot Singh Sidhu (supra) further clarified that the disqualification arising out of conviction ceases to operate, after stay of the conviction. 15. Hon'ble Apex Court in Ravikant S. Patil vs Sarvabhouma S. Bagali (2007) 1 SCC 673 , while reiterating aforesaid law laid down in Navjot Singh Sidhu (supra) further clarified that the disqualification arising out of conviction ceases to operate, after stay of the conviction. 15. Recently, a three-judge Bench of Hon'ble Apex Court in Lok Prahari v. Election Commission of India, (2018) 18 SCC 114 has summarized law on this point as under: “12. Section 389 of the Code of Criminal Procedure, 1973, empowers the appellate court, pending an appeal by a convicted person and for reasons to be recorded in writing to order that the execution of a sentence or order appealed against, be suspended. In the decision in Rama Narang v Ramesh Narang 5 , a Bench of three judges of this Court examined the issue as to whether the court has the power to suspend a conviction under Section 389 (1). This Court held that an order of conviction by itself is not capable of execution under the Code of Criminal Procedure, 1973. But in certain situations, it can become executable in a limited sense upon it resulting in a disqualification under other enactments. Hence, in such a case, it was permissible to invoke the power under Section 389 (1) to stay the conviction as well. This Court held: “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 4 Section 389 provides as follows : “Suspension of sentence pending the appeal; release of appellant on bail. (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto. (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto. (3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,- (i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or (ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub- section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended. (4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.” 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. 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.” 11. In Navjot Singh Sidhu v State of Punjab 6 a Bench of two learned judges of this Court held that a stay of the order of conviction by an appellate court is an exception, to be resorted to in a rare case, after the attention of the appellate court is drawn to the consequences which may ensue if the conviction is not stayed. The court held: “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.” 12. The above position was reiterated by a Bench of three judges of this Court in Ravikant S Patil v Sarvabhouma S Bagali 7 , after adverting to the earlier decisions on the issue, viz. Rama Narang v Ramesh Narang (supra), State of Tamil Nadu v A. Jaganathan8, K.C. Sareen v CBI, Chandigarh9, B.R. Kapur v State of T.N. (supra) and State of Maharashtra v Gajanan.10 This Court concluded as follows:- “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. As order of stay, of course, does not render the conviction non-existent, but only non-operative. Be that as it may. Insofar as the present case is concerned, an application was filed specifically seeking stay of the order of conviction specifying that consequences if conviction was not stayed, that is, the appellant would incur disqualification to contest the election. The High Court after considering the special reason, granted the order staying the conviction. Be that as it may. Insofar as the present case is concerned, an application was filed specifically seeking stay of the order of conviction specifying that consequences if conviction was not stayed, that is, the appellant would incur disqualification to contest the election. The High Court after considering the special reason, granted the order staying the conviction. As the conviction itself is stayed in contrast to a stay of execution of the sentence, it is not possible to accept the contention of the respondent that the disqualification arising out of conviction continues to operate even after stay of conviction.” 16. These decisions have settled the position on the effect of an order of an appellate court staying a conviction pending the appeal. Upon the stay of a conviction under Section 389 of the Cr.P.C., the disqualification under Section 8 will not operate. The decisions in Ravi Kant Patil and Lily Thomas conclude the issue. 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. The power to stay a conviction is by way of an exception. Before it is exercised, the appellate court must be made aware of the consequence which will ensue if the conviction were not to be stayed. Once the conviction has been stayed by the appellate court, the disqualification under sub-sections 1, 2 and 3 of Section 8 of the Representation of the People Act 1951 will not operate. Under Article 102(1)(e) and Article 191(1)(e), the disqualification operates by or under any law made by Parliament. Disqualification under the above provisions of Section 8 follows upon a conviction for one of the listed offences. 11 Id at page 673 Once the conviction has been stayed during the pendency of an appeal, the disqualification which operates as a consequence of the conviction cannot take or remain in effect. In view of the consistent statement of the legal position in Rama Narang and in decisions which followed, there is no merit in the submission that the power conferred on the appellate court under Section 389 does not include the power, in an appropriate case, to stay the conviction. Clearly, the appellate court does possess such a power. In view of the consistent statement of the legal position in Rama Narang and in decisions which followed, there is no merit in the submission that the power conferred on the appellate court under Section 389 does not include the power, in an appropriate case, to stay the conviction. Clearly, the appellate court does possess such a power. 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. The authority vested in the appellate court to stay a conviction ensures that a conviction on untenable or frivolous grounds does not operate to cause serious prejudice. 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 relatable to the provisions of subsections 1, 2 and 3 of Section 8.” 16. Besides aforesaid judgment in Lok Prahari (supra), wherein Hon'ble Apex Court has taken note of all the earlier judgments rendered on the subject, it would be apt to take note of another judgment of Hon'ble Apex Court in Shyam Narain Pandey v. State of U.P. (2014) 8 SCC 909 , wherein Hon'ble Apex Court has held that since sentence can be suspended after recording reasons therefore no hard and fast rules/guidelines can be laid that what such exceptional circumstances are where stay can be granted. 17. It is quite apparent from the aforesaid law laid down by Hon'ble Apex Court from time to time that the appellate court besides enjoying power to suspend the sentence has also the power to stay the conviction but in exceptional cases. Order granting stay of conviction is not the rule but an exception to be resorted in rarest of the rare cases, depending upon the facts of the case. Since power to stay conviction is by way of an exception, before it is exercised, appellate court must be made aware of the consequence, which will ensue if conviction is not stayed. Power of suspension of conviction is vested to the appellate court to ensure that he conviction on untenable or frivolous grounds does not operate to cause serious prejudice. Since power to stay conviction is by way of an exception, before it is exercised, appellate court must be made aware of the consequence, which will ensue if conviction is not stayed. Power of suspension of conviction is vested to the appellate court to ensure that he conviction on untenable or frivolous grounds does not operate to cause serious prejudice. Hon'ble Apex Court in Lily Thomas v. Union of India, (2013) 7 SCC 653 , has clarified that the stay of the conviction would relieve the individual from suffering the consequence inter alia of a disqualification relatable to the provisions of sub-sections 1, 2 and 3 of Section 8 of the Representation of the People Act, 1951. Order of disqualification passed prior to order of stay of order of conviction ceases to operate after stay of conviction. 18. Guided by the aforesaid law laid down by Hon'ble Apex Court, this Court now shall make an endeavour to find out, “whether the present is an exceptional case for grant of stay of the conviction, during the pendency of appeal, or not?” 19. The precise allegation against the petitioner, who was an MLA from Kalka Constituency at the relevant time, is that on 13.6.2011, he was part of an unlawful assembly, which had gathered at Barotiwala Chowk, Baddi, to agitate against the death of one person namely, Sucha Singh resident of Paploha, who, allegedly after having seen the traffic police, had climbed an electricity pole, with an intention to commit suicide. Record reveals that on 31.5.2011, Police had stopped Sucha Singh, for checking and he was allegedly beaten by the Traffic Police and after that, Sucha Singh climbed the electricity police and got electrocuted. He was admitted in PGI Chandigarh and a case under S.309 IPC was registered against him. On 5.6.2011, both the arms of said Sucha Singh were amputated and unfortunately on 13.6.2011, he died. It is further alleged that body of Sucha Singh was taken to Barotiwala Chowk, Baddi by his relatives, who started protesting against the police administration. Relatives of the deceased blocked the roads, where the petitioner, who was an elected representative, was called by one Bhag Singh to talk with the police. It is further alleged that the unlawful assembly in furtherance of common object not only wrongfully disrupted the smooth running of traffic but also caused damage to the public property. Relatives of the deceased blocked the roads, where the petitioner, who was an elected representative, was called by one Bhag Singh to talk with the police. It is further alleged that the unlawful assembly in furtherance of common object not only wrongfully disrupted the smooth running of traffic but also caused damage to the public property. Allegedly, the accused person being member of unlawful assembly, voluntarily caused simple hurt to police personnel present on the spot. Complainant, Amarjeet Singh (PW-8) informed the police regarding the incident, on the basis of which FIR, Ext. PW-8/B, came to be registered. During investigation, one CD was prepared by Constable Bhupender Singh (PW-2) and same was handed over to the Dy.SP. vide memo Ext. PW-2/B. During investigation, Constable Bhupender Singh, PW-2 got one duplicate CD prepared from Thakur Studio. During the course of investigation, Police found involvement of the petitioner alongwith others and accordingly he came to be charged under the aforesaid provisions of law. 20. Learned senior counsel representing the petitioner and learned Advocate General representing the respondent- State, during their submissions, invited attention of this Court to the evidence led on record of the prosecution regarding alleged involvement of the petitioner in the incident. Bare perusal of the evidence adduced on record by the prosecution suggests that the prosecution made an attempt to carve out a case that the petitioner, who was an MLA of Kalka constituency, was leading a crowd, which had gathered to agitate the death of above said Sucha Singh and he not only incited the crowd to damage the public property and beat police personnel present on the spot, but he himself also participated in the acts of damage to the public property. Since the appeal having been filed by the petitioner is yet to be decided by appellate court, it may not be appropriate for this Court to comment or make observations with regard to appreciation of evidence by learned trial Court. However, it is quite apparent from the material available on record that the identification parade of the petitioner as well as other coaccused was not got conducted by the investigating officer from the persons, who had allegedly seen the petitioner and other accused actively participating in the alleged incident. However, it is quite apparent from the material available on record that the identification parade of the petitioner as well as other coaccused was not got conducted by the investigating officer from the persons, who had allegedly seen the petitioner and other accused actively participating in the alleged incident. Material available on record nowhere suggests that the plea of alibi, if any, ever came to be raised on behalf of the petitioner, rather, his presence on the spot is admitted. Though the prosecution witnesses, to demonstrate involvement of the petitioner in the alleged offence, deposed before the learned trial Court that the petitioner was a member of the unlawful assembly and had incited the crowd to commit unlawful acts but if their statements are read in entirety, they nowhere suggest that, prior to the alleged incident, they had an occasion to see the petitioner, who was an elected Member of Legislative Assembly from Kalka constituency at the relevant time and as such, it is not understood that how, on the date of alleged incident, they could identify the petitioner by name, especially when majority of the prosecution witnesses have stated that the involvement of the petitioner in the case at hand was found during the investigation. 21. Learned Advocate General, while placing reliance upon judgment rendered by Hon'ble Apex Court in Binay Kumar Singh v. State of Bihar, (1997) 1 SCC 283 , contended that the non-identification of the accused by the injured persons cannot have any adverse impact on the prosecution case. 22. Having carefully perused the aforesaid judgment rendered by Hon'ble Apex Court, this Court finds that the submission of learned Advocate General cannot be accepted for the reason that in the case before Hon'ble Apex Court, none of the injured witnesses, identified the accused but the noninjured witnesses had identified some of the accused. If the aforesaid judgment is read in its entirety, it clearly suggests that when size of the unlawful assembly is quite large and many persons would have witnessed the incident, it would be a prudent exercise to insist on at least two reliable witnesses to vouchsafe the identification of an accused as participant in the rioting. Hon'ble Apex Court has held as under: “31. We have noticed that Mritunjaya (A-23) and Parmanand Sharma) and Madan Mohan Sharma son of Ambica (A-24) were identified by more than two witnesses as participants in the occurrence. Hon'ble Apex Court has held as under: “31. We have noticed that Mritunjaya (A-23) and Parmanand Sharma) and Madan Mohan Sharma son of Ambica (A-24) were identified by more than two witnesses as participants in the occurrence. Out of those witness the testimony of PW-10 and PW- 32 was accepted by both courts. As for the remaining appellants both courts have accepted the testimony of at least three witnesses each as referring to each appellant. There is no rule of evidence that no conviction can be based unless a certain minimum number of witnesses have identified a particular accused as member of the unlawful assembly. It is axiomatic that evidence is not to be counted but only weighed and it is not the quantity of evidence but the quality that matters. Even the testimony of one single witness, if wholly reliable, is sufficient to establish the identification of an accused as member of an unlawful assembly. All the same when size of the unlawful assembly is quite large(as in this case) and many persons would have witnessed the incident, it would be a prudent exercise to insist on at least two reliable witnesses to vouchsafe the identification of an accused as participant in the rioting. In Masalti vs. The State of utter Pradesh ( AIR 1965 SC 202 ), a Bench of four Judges Of this court has adopted such a formula. It is useful to extract it here : "Where a criminal court has to deal with evidence pertaining to the commission of an office involving a large number of offence and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident." 23. In the case at hand, no identification parade of the petitioner was got conducted by the Police and all the prosecution witnesses had an occasion /opportunity to see the accused including the petitioner for the first time during trial itself. Moreover, PW-8, complainant S.I. Amarjeet Singh has turned hostile. There cannot be any quarrel with the submission of learned Advocate General that the version put forth by prosecution witnesses, who subsequently turned hostile, is to be read in support of prosecution case, inasmuch as it supports the case of prosecution. Moreover, PW-8, complainant S.I. Amarjeet Singh has turned hostile. There cannot be any quarrel with the submission of learned Advocate General that the version put forth by prosecution witnesses, who subsequently turned hostile, is to be read in support of prosecution case, inasmuch as it supports the case of prosecution. In the case at hand, complainant in his examination-in-chief stated that the present petitioner alongwith some of the other agitators was talking to the officials present on the spot, but in the meantime, few persons from the crowd started pelting stones. If aforesaid version given by PW-8, who was an eye witness to the incident, is taken into consideration, it suggests that the petitioner though being an elected Member of Legislative Assembly was with the crowd but, while he was talking to the authorities present on the spot, other members of the crowd, of their own, without there being any incitement from the petitioner, started indulging in unlawful activities. 24. Similar version with regard to the petitioner having a word/discussion with the officials present on the spot, has been put on record by PW-5 LHC Sunita, who, in her statement given to the Court, has stated that the present petitioner alongwith other agitators, was talking to the officials present on the spot. She further stated that two public vehicles i.e. one Mahindra Pikup bearing registration No. HP- 12C-5441 and bus bearing registration No. HP-14A-3176 were damaged and burnt. It also transpires from the record that nine police personnel were injured in the incident, out of which three were examined by the prosecution i.e. Sunita (PW- 5), SI Amarjeet (PW-8) and Brahm Dass (PW-12) and only Sunita (PW-5) has deposed exactly about the injuries and other official witnesses did not support the prosecution story. 25. Cross-examination conducted upon prosecution witnesses, if perused in its entirety, suggests that an attempt has been made by the defence to carve out a case that the crowd, which had gathered at Barotiwala Chowk, intended to submit memorandum to the Deputy Commissioner and in this regard, petitioner was talking to the police personnel present on the spot, but in the meantime, some members of the crowd became unruly and indulged in illegal activities. No evidence worth credence has been led on record to show that there was meeting of minds and there was a common object of the ‘crowd’ and the petitioner. No evidence worth credence has been led on record to show that there was meeting of minds and there was a common object of the ‘crowd’ and the petitioner. Similarly, there appears to be no evidence to show that the petitioner had knowledge of the ‘common object’ of the crowd so as to attract provisions of S.149 IPC, especially, when it has come in the evidence of PW- 1, that the crowd, all of a sudden, got aggressive on seeing the police. 26. Though, learned Advocate General, while making this court peruse statements of PW-3, PW-4 and PW-5 made a serious attempt to persuade this Court to agree with his contention that the petitioner was not only present on the spot alongwith other agitators, rather he incited the crowd to indulge in illegal activities, but having carefully perused evidence available on record, this court finds it difficult to accept the aforesaid contention of learned Advocate General. Though the material available on record clearly suggests that the petitioner was present on the spot, at the time of alleged incident, but the evidence to demonstrate his active involvement in the crime is lacking. 27. Leaving everything aside, careful perusal of judgment of conviction rendered by learned trial Court, clearly suggests that the CD (Exhibit P-1) of the incident dated 13.8.2011 prepared by Constable Bhupender Singh (PW-2), through official handi-cam, weighed heavily with the learned trial Court, while concluding the guilt of the petitioner and other accused. It is not in dispute that certificate under S.65B of the Indian Evidence Act, never came to be rendered on record qua the authenticity of the aforesaid CD. Learned court below has concluded in its judgment that the CD is a document and has been proved by its maker, constable Bhupender, PW-2, who recorded the video and it is an admissible document because the person who created it, has been examined. Statement of PW-2 reveals that out of original CD Exhibit P1, a duplicate CD was got prepared from Thakur Studio. Prosecution examined the relevant person to prove the aforesaid fact i.e. Sudesh Kumar (PW-9), who stated that he prepared the duplicate CD on the instructions of police. However, he does not remember mark of CD. This witness was declared hostile. In his cross-examination, PW-9 testified that there are his signatures on memo Ext. Prosecution examined the relevant person to prove the aforesaid fact i.e. Sudesh Kumar (PW-9), who stated that he prepared the duplicate CD on the instructions of police. However, he does not remember mark of CD. This witness was declared hostile. In his cross-examination, PW-9 testified that there are his signatures on memo Ext. PW-2/A. Learned trial Court has observed in the judgment that S. 65 of the Indian Evidence Act differentiates between the original information and copies made therefrom, the former being primary evidence and latter being secondary evidence and requisite criteria under Section 65 is unnecessary if the original document itself is produced. 28. Aforesaid interpretation of S.65B of the Indian Evidence Act given by learned trial Court appears to be erroneous for the reason that at no point of time, handicam with which incident was recorded, came to be produced in the court, rather, CD prepared from recordings of handicam came to be produced on record. Once, the handicam was not produced, it was incumbent upon prosecution to place on record certificate under S.65B of the Indian Evidence Act. It is another aspect that even in the CD so produced by the prosecution, petitioner is nowhere seen either damaging the public vehicles or beating the police personnel present on the spot. There is yet another aspect of the matter that in the judgment, it has nowhere come that the CD prepared through the handicam has been proved in accordance with law. 29. Hon'ble Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020)7 SCC 1 , has held as under: “73. The reference is thus answered by stating that: 73.1 Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this Court on Section 65Bof the Evidence Act. The judgment in Tomaso Bruno (supra), being per incuriam, does not lay down the law correctly. Also, the judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad (supra) and the judgment dated 03.04.2018 reported as (2018) 5 SCC 311 , do not lay down the law correctly and are therefore overruled. 73.2 The clarification referred to above is that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. 73.2 The clarification referred to above is that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4). The last sentence in Anvar P.V. (supra) which reads as “…if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act…” is thus clarified; it is to be read without the words “under Section 62 of the Evidence Act,…” With this clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited. 73.3 The general directions issued in paragraph 62 (supra) shall hereafter be followed by courts that deal with electronic evidence, to ensure their preservation, and production of certificate at the appropriate stage. These directions shall apply in all proceedings, till rules and directions under Section 67C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers.” 30. At this stage, learned Advocate General contended that S.65B of the Indian Evidence Act, talks about documents/recordings generated from the computer but since in the case at hand, recording was done from handicam, S. 65B cannot be made applicable, With a view to strengthen aforesaid submission, learned Advocate General placed reliance upon following judgments: 1. AIR 1961 (SC) 1325 2. (1985) 4 SCC 30 3. 1992 Supp (1) SCC 489 4. 1992 Supp (2) SCC 77 5. (1994) 6 SCC 479 6. (1995) 4 SCC 341 7. (2001) 7 SCC 525 31. While relying upon aforesaid judgments, learned Advocate General contended that when a particular word has not been defined under the statute, plain meaning of the word as used in common parlance is required to be given to that word. 32. (1994) 6 SCC 479 6. (1995) 4 SCC 341 7. (2001) 7 SCC 525 31. While relying upon aforesaid judgments, learned Advocate General contended that when a particular word has not been defined under the statute, plain meaning of the word as used in common parlance is required to be given to that word. 32. Having perused aforesaid judgments relied upon by learned Advocate General, though this court sees no reason to differ with the aforesaid submission of learned Advocate General because admittedly when a particular word is not defined under the relevant statute/Act, it is to be given the meaning as understood in common parlance, however, aforesaid analogy cannot be applied to the word “computer” which though has not been defined under the Indian Evidence Act, but has been elaborately defined under the Information Technology Act, which reads as under: “2 (i) ?computer? means any electronic, magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software or communication facilities which are connected or related to the computer in a computer system or computer network; (t) ?electronic record? means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche; 33. If the definition as given to “electronic record” under Ss. 2(i) and 2(t) is read in its entirety, it clearly includes “handicam” also because that, besides recoding images, also records sound. The very object and purpose of amending the Indian Evidence Act, especially S.65 thereof is/was to prove electronic record as defined under aforesaid provisions. 34. Hon'ble Apex Court in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 has held as under: “20. Proof of electronic record is a special provision introduced by the IT Act amending various provisions under the Evidence Act. The very caption of Section 65A of the Evidence Act, read with Sections 59and 65B is sufficient to hold that the special provisions on evidence relating to electronic record shall be governed by the procedure prescribed under Section 65B of the Evidence Act. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield. 22. That is a complete code in itself. Being a special law, the general law under Sections 63 and 65 has to yield. 22. The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.” 35. Though the court, while suspending the conviction and sentence, is required to go through whole evidence, without commenting on its merit, but, while carrying out such exercise, it requires to satisfy itself whether a strong case is made out against appellant or not? Prosecution is obliged to prove its case beyond all reasonable doubts and not on preponderance of probabilities. 36. Petitioner was elected as an MLA in the year 2019, meaning thereby if the petitioner is/was allowed to complete his normal tenure, he would have served his constituency till the year 2024. Since the petitioner has rendered himself disqualified to be an MLA on account of conviction and sentence, which exceeds term of two years, he would not only be deprived of his membership in the legislative assembly but would it would also stifle the voice of electorate of the constituency of the petitioner, which not only elected him in the year 2019 but also at an earlier occasion in the year 2009. Besides above, petitioner would also be debarred from contesting the elections on account of his being convicted and sentenced for more than two years, in terms of S.8(3) of the Representation of the People Act, 1951, in case the conviction is not stayed. Though the appeal against judgment of conviction and order of sentence stands filed in the appellate court but since considerable time may be consumed in the disposal of the appeal, prayer has been made on behalf of the petitioner to stay the conviction so that he does not lose his membership and an opportunity to serve his constituency for the complete term of five years. Certainly in a democratic set up, restriction on exercise of such right can be considered hardship to the petitioner, especially if he is able to show that conviction and sentence are not based upon cogent and convincing evidence and he has a fair chance to succeed in appeal against the conviction and sentence recorded by the trial court. 37. Though the appeal of the petitioner is to be decided by the appellate court in the totality of evidence available on record, but having noticed aforesaid aspects of the matter, this court is of the view that the case at hand comes under the category of ‘exceptional’ case and, in case conviction is not stayed, petitioner’s political career would be ruined. Besides above, this Court finds that on account of conviction, petitioner has been rendered disqualified to be a Member of Legislative Assembly and, in case conviction is not stayed, he would not be able to contest the elections, which are otherwise bound to be held within six months of occurrence of the vacancy, as has been provided under Section 151A of the Representation of the People Act, 1951. Conclusion of appeal pending before appellate court may take some time, and in the event of appeal being allowed and petitioner being acquitted, he cannot be compensated for the loss of the term as MLA, which may even end by the time the appeal concludes. 38. In the case at hand, the petitioner has been rendered disqualified on account of conviction in terms of S.8(3) of the Representation of the People Act, 1951 and immediately after his disqualification, vacancy has occurred. 38. In the case at hand, the petitioner has been rendered disqualified on account of conviction in terms of S.8(3) of the Representation of the People Act, 1951 and immediately after his disqualification, vacancy has occurred. Once vacancy has occurred, there is every likelihood of fresh election, which in any eventuality is to be conducted within a period of six months from the date of occurrence of vacancy. 39. Another submission of learned Advocate General that once the petitioner on account of conviction stands disqualified in terms of S.8(3) of the Representation of the People Act, 1951, order staying conviction shall have no relevance, is wholly misconceived and deserves outright rejection. Hon'ble Apex Court in Lily Thomas v. Union of India, (2013) 7 SCC 653 has categorically held that disqualification arising on account of conviction does not continue to operate after stay of conviction. Hon'ble Apex Court has held as under: “35. ... In the aforesaid case, a contention was raised by the respondents that the appellant was disqualified from contesting the election to the Legislative Assembly under sub-section 93) of Section 8 of the Act as he had been convicted for an offence punishable under Sections 366 and 376 of the Penal Code and it was held by the three-Judge bench that as the High Court for special reasons had passed an order staying the conviction, the disqualification arising out of the conviction ceased to operate after the stay of conviction. Therefore, the disqualification under sub-sections (1), (2) or (3) of Section 8 of the Act will nto operate from the date of order of stay of conviction passed by the appellate court under Section 389 of the Code or the High Court under Section 482 of the Code.” 40. True it is that power under S.389 CrPC is to be exercised sparingly and with circumspection so as to stay the conviction, yet it is equally true that principle of law is to be applied as per peculiar facts and circumstances of each case. There cannot be a straightjacket formula rather, each case is to be examined in its own peculiar facts and circumstances. In case, conviction of petitioner is not stayed, he will suffer the consequences, which cannot be compensated subsequently in any terms and are irreversible. 41. There cannot be a straightjacket formula rather, each case is to be examined in its own peculiar facts and circumstances. In case, conviction of petitioner is not stayed, he will suffer the consequences, which cannot be compensated subsequently in any terms and are irreversible. 41. In case Padam Singh v. State of U.P., (2000) 1 SCC 621 , Hon'ble Apex Court has held that presumption of innocence with which the accused starts, continues right through until he is held guilty by the final court of appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court. 42. In Retti Deenabandu and others v. State of Andhra Pradesh, 1977 SCC (Crl.) 173, Hon'ble Apex Court has held that the conviction for an offence entails certain consequences. Conviction also carries with it a stigma for the convicted person. A convicted person challenging his conviction. in appeal not only seeks to avoid undergoing the punishment imposed upon him as a result of the conviction, but he also wants that other evil consequences flowing from the conviction should not visit him and that the stigma which attaches to him because of the conviction should be' wiped out. 43. Reliance placed by learned Advocate General on judgment rendered by Hon'ble Apex Court in K.C. Sareen v. CBI, Chandigarh, 2001 (3) RCR (Criminal) 718: JT 2001 (6) SC 59, may not have much bearing on the present case. In the aforesaid judgment, Hon'ble Apex Court has held that when a public servant was 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. However, the petitioner, in the case at hand is not charged under Prevention of Corruption Act, rather, under Indian Penal Code that too for not having committed any heinous crime such like murder, rape, dacoity or the cases of moral turpitude. Moreover, after passing of judgment in K.C. Sareen (supra), Hon'ble Apex Court has rendered a number of judgments, wherein it has been held that judgment of conviction can be stayed in “exceptional” cases. Moreover, after passing of judgment in K.C. Sareen (supra), Hon'ble Apex Court has rendered a number of judgments, wherein it has been held that judgment of conviction can be stayed in “exceptional” cases. Since, there is no hard and fast rule/guidelines as to what are those exceptional circumstances, Hon'ble Apex Court in Shyam Narain Pandey v. State of U.P. (2014) 8 SCC 909 , has attempted to cull out certain circumstances, which can be termed to “exceptional” circumstances, as under: “5. It has been consistently held by this Court that unless there are exceptional circumstances, the appellate court shall not stay the conviction, though the sentence may be suspended. There is no hard and fast rule or guidelines as to what are those exceptional circumstances. However, there are certain indications in the Code of Criminal Procedure, 1973 itself as to which are those situations and a few indications are available in the judgments of this Court as to what are those circumstances. 6. It may be noticed that even for the suspension of the sentence, the court has to record the reasons in writing under Section 389(1) Cr.PC. Couple of provisos were added under Section 389(1) Cr.PC pursuant to the recommendations made by the Law Commission of India and observations of this Court in various judgments, as per Act 25 of 2005. It was regarding the release on bail of a convict where the sentence is of death or life imprisonment or of a period not less than ten years. If the appellate court is inclined to consider release of a convict of such offences, the public prosecutor has to be given an opportunity for showing cause in writing against such release. This is also an indication as to the seriousness of such offences and circumspection which the court should have while passing the order on stay of conviction. Similar is the case with offences involving moral turpitude. If the convict is involved in crimes which are so outrageous and yet beyond suspension of sentence, if the conviction also is stayed, it would have serious impact on the public perception on the integrity institution. Such orders definitely will shake the public confidence in judiciary. Similar is the case with offences involving moral turpitude. If the convict is involved in crimes which are so outrageous and yet beyond suspension of sentence, if the conviction also is stayed, it would have serious impact on the public perception on the integrity institution. Such orders definitely will shake the public confidence in judiciary. That is why, it has been cautioned time and again that the court should be very wary in staying the conviction especially in the types of cases referred to above and it shall be done only in very rare and exceptional cases of irreparable injury coupled with irreversible consequences resulting in injustice.” 44. In view of the law laid down by Hon'ble Apex Court and peculiar facts and circumstances of the case, it can be said that the present case falls under “exceptional” case, which calls for stay of the conviction recorded by learned trial Court, as it would lead to serious consequences for the petitioner. Having taken note of the peculiar facts and circumstances of the present case and the law laid down by Hon'ble Apex Court on the subject, this Court has no hesitation to conclude that it is just and expedient in the interests of justice to stay the conviction of the petitioner during pendency of appeal pending before learned Sessions Judge. 45. Accordingly, in view of the detailed discussion held supra and the law taken note above, present petition is allowed. Order dated 12.2.2021 passed by learned Sessions Judge, Solan camp at Nalagarh/Additional Sessions Judge, Nalagarh, District Solan, in application No.21/2021 filed in Cr. Appeal No. 21-NL/4 of 2021, titled Pardeep Chaudhary vs. State of Himachal Pradesh is modified and findings of conviction recorded by learned trial Court against the petitioner, are stayed, till the final adjudication of the appeal. 46. Reference as has been made to the evidence available on record, is for the purpose of determining/inferring exceptional case, if any, and observations, if any, made qua the evidence adduced on record by the prosecution shall not be construed to be a reflection on the merits of the appeal pending before first appellate Court, which shall be decided on its own merit and in the totality of the evidence available before it. All pending applications stand disposed of. Record of the court below, if received, be sent back forthwith. Copy Dasti.