2006 Supreme(SC) 1116

2006(9) Supreme 677
SUPREME COURT OF INDIA
(From Karnataka High Court)
Y.K. Sabharwal, CJI., C.K. Thakker and R.V. Raveendran, JJ.
Ravikant S. Patil - Appellant
versus
Sarvabhouma S. Bagali - Respondent
Civil Appeal No. 5034 of 2005
Decided on 14-11-2006
Counsel for the Parties :
For the Applicant : Harish N. Salve, Sr. Advocate, Basava Prabhu S. Patil, Sushil Karanjkar, V.N. Raghupathy and B. Subrahmanya Prasad, Advocates.
For the Appellant(s) : Shantha Kr. Mahale, Rajesh Mahale, C.B. Gururaj and Girish Y.L., Advocates.

IMPORTANT POINT
Where conviction of a person had been stayed and suspended by appellate Court on date of nomination and election, such a person for State legislative assembly would not be considered to be disqualified u/s 8 of the Representation of People Act.

Headnote:(i) Representation of People Act, 1951 - Section 8(1)(3) - Disqualification - Appellant was declared elected for State Legislative Assembly on 13-5-2004 - Election petition challenging election on ground that on date of filing of nomination and on date of declaration of results, appellant was disqualified as he had been convicted u/s 366 and 376 IPC and had been sentenced to 7 years imprisonment - Appellant was convicted on 28-7-2000 by Sessions Court for offences and he had filed appeal against conviction - Pending appeal High Court had granted stay of execution of sentence - High Court on appellant’s application by its order dt. 26-3-2004 stayed the conviction pending appeal and thereafter appellant had filed his nomination on 29-3-2004 for Legislative Assembly seat - High Court found that appellant was disqualified to contest the election and election of appellant was declared null and void - Appeal - Disqualification is to be determined with reference to date fixed for scrutiny of nomination - Effect of stay of conviction even before nomination in so far as disqualification u/s 8 of the Act - On the date of nomination and election, in view of order staying conviction, appellant was not disqualified - Impugned judgment was liable to be set aside.

       Held : The High Court, relying upon the decision of this Court in K. Prabhakaran vs. P. Jayarajan, (2005) 1 SCC 754, came to the conclusion that the appellant was disqualified to contest the election, in view of the fact that as on the date of nomination, there was a conviction against the appellant which had not been set aside by a higher court. The High Court has opined that the decisive dates are the date of election and the date of scrutiny of nomination and not the date of judgment in an election petition or in appeal against it. Accordingly, the election petition was allowed and it was declared that the election and declaration of result of the appellant to the Indi Assembly Constituency were null and void.(Para 5)

       In the present case, however, the appellant’s stand of being qualified to contest the election was not either on the basis of subsequent acquittal or on the basis of stay of execution of sentence, but based on the stay of the conviction. It is evident that before the last date of filing nomination, the appellant had filed an application (Criminal Application No. 487 of 2004) in his pending Criminal Appeal No. 658 of 2000 praying therein that his conviction be stayed pending appeal since he had to contest the ensuring election, and that if his conviction was not stayed, he would not be able the contest the election resulting in deprivation of his right to so contest. The Bombay High Court by order dated 26th March, 2004, considering the facts and circumstances of the case, inter alia noticing that there was a voluntary marriage between the victim girl and the accused-appellant, and other relevant facts for the purpose of deciding that application, granted the order of stay of conviction of the appellant, in addition to the order of stay of execution of sentence which was already operative when the appellant filed the application for stay of conviction. The question, under these circumstances, is as to the effect of stay of conviction even before nomination, insofar as the disqualification provided under Section 8 of the Act.(Para 8)

       Reverting to the present case, we are not called upon to decide the correctness of the order of stay of conviction dated 26th March, 2004. All that requires to be noticed is that on the dates of nomination and election, in view of the said order staying conviction, the appellant was not disqualified. The question whether subsequently the conviction was set aside in appeal or whether the matter is in further challenge before this Court is of no relevance for deciding the point in issue.(Para 13)

       In view of the above, the decision of the High Court that the appellant was disqualified as on the date of nomination and that his nomination was improperly accepted cannot be sustained. Resultantly, we allow the civil appeal and set aside the impugned judgment of the High Court and dismiss the Election Petition.(Para 14)

       (ii) Criminal Procedure Code, 1973 - Section 389 - Stay of order of conviction in absence of a specific provision for such stay in Code - It was permissible to invoke power u/s 389 Cr.P.C. for staying conviction also - Granting stay of conviction however was not the rule but an exception to be resorted to in rare cases depending upon facts of a case.

       Held : The question whether an order of conviction can be stayed, in the absence of a specific provision for such stay in the Code, came up for consideration before this Court in the case of Rama Narang vs. Ramesh Narang & Ors., (1995) 2 SCC 513. In the said case, the order that had been passed, while admitting the appeal, by the High Court purporting to be one under Section 389(1) of the Code was to the following effect:-

       “Accused be released on bail on his furnishing a personal bond in the sum of Rs. 10,000 with one surety in the like amount to the satisfaction of the trial Judge. The operation of the impugned order shall remain stayed.”

       One of the questions that was examined in that case was whether the power under Section 389(1) of the Code could be invoked to stay the conviction. This Court held that an order of conviction by itself is not capable of execution under the Code of Criminal Procedure, but in certain situations, the order of conviction can become executable in a limited sense, inasmuch as it may result in incurring of some disqualification under other enactment; and that in such cases, it was permissible to invoke the power under Section 389(1) of the Code for staying the conviction also.(Para 10)

       This Court, however, clarified that 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; and that unless the attention of the court to the specific consequences that are likely to fall upon conviction, the person convicted cannot obtain an order of stay of conviction. In fact, if such specific consequences are not brought to its notice, the court cannot be expected to grant stay of conviction or assign reasons relevant for staying the conviction itself, instead of merely suspending the execution of the sentence. In that case, it was found on facts that the appellant therein had not specified the disqualification he was likely to incur under Section 267 of the Companies Act, if his conviction was not stayed. Therefore, this Court refused to infer that the High Court had applied its mind to this specific aspect of the matter and had thereafter granted stay of conviction or the operation of the impugned judgment. Consequently, the order of stay was not construed as a stay of conviction. 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.(Paras 10 and 11)