IMPORTANT POINT
Appellate Court can suspend or grant stay of order of conviction but person seeking stay of conviction should specifically draw attention of appellate Court to consequences that may arise if conviction is not stayed.

Headnote:Criminal Procedure Code, 1973—Section 389—Representation of People Act, 1951—Section 8(3) and (4)—Application for suspension of order of conviction—Appellant was convicted u/s 304 Part II/34 IPC and was sentenced to three years’ imprisonment with fine by High Court in the State Appeal against acquittal—Appellant was a sitting Member of Parliament and resigned from membership of Lok Sabha immediately on conviction—Appellant could have avoided the incurring of disqualification by filing an appeal within three months—Appellate Court had power to suspend or grant stay of order of conviction—Court’s attention has to be specifically drawn to consequences that could follow if conviction was not stayed—Stay of conviction could be resorted to in rare cases depending upon special facts of the case—Appellant having resigned from membership of Lok Sabha wanted to seek fresh mandate by contesting election—Appellant was convicted for having given a fist blow to deceased during an altercation on the road—Injury suffered by deceased as recorded in post mortem was an abrasion over left temporal region and subdural haemorrhage was found—Pathological Report showed that deceased had a very weak heart—Incident happened all of a sudden without any pre-meditation—Medical evidence did not conclusively establish that death occurred due to blow given on head—Appellant by resigning from Lok Sabha chose to adopt a moral path and set high standard in public life—If prayer was refused he would suffer irreparable loss—Fit case where order of conviction deserved to be suspended.
       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. 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 form 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.(Paras 3 and 4)
       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, nevertheless we consider it proper to refer to the medical evidence, which has an important bearing on the nature of the offence alleged to have been committed by the appellant.(Para 7)
       PW.1 Dr. Jatinder Kumar Sadana conducted post-mortem examination on the body of the deceased Gurnam Singh at 4.30 p.m. on 27.12.1988 and found the following injuries on his person:-
       1.An abrasion 0.75 cm x 0.5 cm over the left temporal region at the junction of upper part of pinna.
       2.An abrasion 0.5 cm x 0.5 cm over the front of left knee.
       On opening the skull subdural haemorrhage was found present on the left temporal region. The doctor was unable to give the cause of death and deferred his opinion till the receipt of the report of the Pathological examination. He sent the lungs, heart, part of liver, spleen and kidneys for Pathological examination to Medical College, Patiala. In his cross-examination the doctor stated that there was no fracture under injury no.1 and the possibility could not be ruled out that the said injury may have been received by a fall on the ground. He further stated that there was no external injury on the front part except the subdural haemorrhage and that subdural haemorrhage is not fatal in all cases. The Pathological Report showed that the deceased had a very weak heart(Para 8)
       We have pointed out above the broad features of the case. The incident happened all of a sudden without any pre-meditation. The deceased was wholly unknown to the appellant. There was no motive for commission of the crime. The accused are alleged to have lost temper and started giving abuses on account of objection raised by the occupants of the Maruti car due to obstruction being caused by the vehicle of the appellant. Blows by fist are alleged to have been given and no weapon of any kind has been used. The medical evidence shows that the deceased had a diseased heart. The doctor who performed the post-mortem examination was unable to give the cause of death. The Medical Board gave its opinion after nearly a fortnight and that too does not ascribe the death due to any external injury but says “effects of head injury and cardiac condition.” The medical evidence does not conclusively establish that the death occurred due to blow given on the head.(Para 10)
       As already stated, it was not necessary for the appellant to have resigned from the membership of the Parliament as he could in law continue as M.P. by merely filing an appeal within a period of 3 months and had he adopted such a course he could have easily avoided incurring any disqualification at least till the decision of the appeal. However, he has chosen to adopt a moral path and has set high standards in public life by resigning from his seat and in seeking to get a fresh mandate from the people. In the event prayer made by the appellant is not granted he would suffer irreparable injury as he would not be able to contest for the seat which he held and has fallen vacant only on account of his voluntary resignation which he did on purely moral grounds. Having regard to the entire facts and circumstances mentioned above we are of the opinion that it a fit case where the order of conviction passed by the High Court deserves to be suspended.(Para 11)

JUDGMENT

G.P. Mathur, J.—The appellant Navjot Singh Sidhu along with co-accused Rupinder Singh Sandhu was tried for charges under Section 302 IPC and Section 323 read with Section 34 IPC, but was acquitted by the learned Sessions Judge, Patiala, by the judgment and order dated 22.9.1999 which order was challenged by the State of Punjab by filing an appeal in the High Court which has been allowed and the appellant has been convicted under Section 304 Part II IPC and has been sentenced to 3 years R.I. and a fine of rupees one lakh. The co-accused Rupinder Singh Sandhu has also been convicted under Section 304 Part II read with Section 34 IPC and has been sentenced to 3 years R.I. and a fine of rupees one lakh. He has further been convicted under Section 323 IPC and has been sentenced to 3 months R.I. The appellant filed special leave petition in this Court in which leave has been granted on 12.1.2007 and he has been released on bail and thus the execution of the sentence imposed upon him has been suspended. The appellant also moved an application for suspending the order of conviction passed against him by the High Court on which notice was issued to the State of Punjab and the said application is being disposed of by the present order.

2. The circumstances leading to the filing of the application for suspension of order of conviction need to be noticed. The appellant was a sitting Member of Parliament. Immediately after the pronouncement of judgment by the High Court, he resigned from the membership of the Lok Sabha. It is stated in the application that for maintaining probity and moral values in public life he resigned from the membership of the Lok Sabha after his conviction. However, he wants to remain in public life and, therefore, wants to contest the election again and face the electorate in the changed scenario. The reason for seeking a stay or suspension of order of conviction arises on account of Section 8(3) of the Representation of the People Act, 1951 (hereinafter referred to as “the Act”) by operation of which he has incurred a disqualification for being chosen as, and for being, a member of either House of Parliament. Section 7(b) and Sub-sections (3) and (4) of Section 8 of the Representation of the People Act, 1951, which have a bearing on controversy in hand read as under:-

“7(b) “disqualified” means disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State.”

“8(3) A person convicted of any offence and sentenced to imprisonment for not less than two years (other than any offence referred to in sub-section (1) or sub-section (2)) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.

(4) Notwithstanding anything in sub-section (1), sub-section (2) and sub-section (3) a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court.”

By virtue of Sub-section (3) of Section 8 of the Act the appellant incurred the disqualification as he has been sentenced to 3 years R.I. Sub-section (4) of Section 8 provides that if on the date of the conviction, a person is a Member of the Parliament then notwithstanding anything in Sub-section (3), the disqualification mentioned therein shall not take effect until 3 months have elapsed from the date of order of conviction and if within that period an appeal is brought in respect of the conviction or sentence, until that appeal or application is disposed of by the Court. This provision has been interpreted by a Constitution Bench in K. Prabhakaran v. P

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2007 Supreme(SC) 85

IMPORTANT POINTAppellate Court can suspend or grant stay of order of conviction but person seeking stay of conviction should specifically draw attention of appellate Court to consequences that may arise if conviction is not stayed.

Cases Referred (6)

IMPORTANT POINT
Appellate Court can suspend or grant stay of order of conviction but person seeking stay of conviction should specifically draw attention of appellate Court to consequences that may arise if conviction is not stayed.