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2009(2) Supreme 744
SUPREME COURT OF INDIA
CJI K.G. Balakrishnan and P. Sathasivam and R.M. Lodha, JJ.
Sanjay Dutt — Appellant
versus
State of Maharashtra Thr. CBI, Bombay — Respondent
Crl. M.P. Nos. 4087, 5229, 5230, 5237 & 5314 of 2009
in
Criminal Appeal No. 1060 of 2007
Decided on : 31-03-2009
Facts of the Case :
1. Petitioner 117th accused in Special Case No. 1/93 (Bombay Blast Case) before the Special Judge, TADA (Mumbai),was prosecuted under various Sections of TADA such as Section 3(3), Section 5 and Section 6 and also for offence under Sections3,7 read with Sections 25(1A) and 25(1B) of the Arms Act, 1959.Petitioner on being found guilty of offences punishable under Section 3 and Section 7 read with Sections 25(1A) and 25(1B) of the Arms Act was sentenced to six years rigorous imprisonment. An Appeal was filed by petitioner against his conviction and sentence. Pending consideration of appeal, petitioner was granted bail .
2. Present Petition has been filed by petitioner for suspension of execution of order of conviction and sentence pending final hearing of the appeal on plea that petitioner was desirous of contesting election to the House of People from Lucknow Parliament Constituency .Petitioner has prayed that since in view of Section 8(3) of the Representation of People Act, 1951, he had incurred disqualification from contesting election for becoming a member of either House of Parliament hence his conviction and sentence be suspended to enable him to contest the election.
Findings of the Court :
Petitioner is a well-known cine artist and because of his contribution to art and cinema he has got large number of fans throughout the country and abroad. His father was also a well-known film actor and 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 he had involved in any other criminal case. Despite all these favourable circumstances, held to be not a fit case where conviction and sentence could be suspended . 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 Cr.P.C. can be exercised only under exceptional circumstances. In view of serious offence for which petitioner had been convicted by Special Judge, held to be not a fit case to suspend the conviction and sentence. Petitions dismissed.
Result : Petitions dismissed.
Ratio Decidendi:
The power of the Court under Section 389 Cr.P.C. to suspend execution of an order of conviction and sentence pending appeal can be exercised only under exceptional circumstances, particularly where the conviction results in disqualification under Section 8(3) of the Representation of the People Act, 1951, prohibiting a person convicted and sentenced to imprisonment for not less than two years from contesting elections, with disqualification continuing for a further six years post-release. (!) (!) (!) (!) (!) (!) (!) (!)
A conviction for serious offences under the Arms Act (Sections 3, 7 read with 25(1A) and 25(1B)), even absent habitual criminality or other favorable personal factors such as public fame or family background in public service, does not constitute an exceptional circumstance warranting suspension of conviction to enable contesting parliamentary elections. (!) (!) (!) (!) (!)
JUDGMENT
K.G. Balakrishnan, CJI. —
1. The petitioner herein, the 117th accused in Special Case No. 1/93 (Bombay Blast Case) before the Special Judge, TADA (Mumbai), was charged under various Sections of Terrorist and Disruptive Activities (Prevention) Act (TADA) such as Section 3(3), Section 5 and Section 6 and also for the offence under Section 3 and Section 7 read with Sections 25 (1A) and 25(1B) of the Arms Act, 1959. The petitioner was found guilty of offences punishable under Section 3 and Section 7 read with Sections 25(1A) and 25(1B) of the Arms Act and was sentenced to six years rigorous imprisonment. The petitioner has filed appeal against his conviction and sentence and that appeal is pending consideration before this Court. Pending consideration of that appeal, the petitioner was granted bail on 28.2.2007.
2. Crl,M.P. No. 4087 of 2009 has been filed by the petitioner under Section 389 of the Code of Criminal Procedure, 1973 (Cr.P.C.) praying that execution of the order of conviction and sentence be suspended pending final hearing of the appeal. In the petition it is stated that he belongs to a family which has been in long public service in the country and the petitioner is now desirous of contesting election to the House of People from Lucknow Parliament Constituency and in view of Section 8(3) of the Representation of People Act, 1951, he has incurred disqualification from contesting the election for becoming a member of either House of Parliament. Therefore, it is prayed that the conviction and sentence of the petitioner be suspended to enable him to contest the election.
3. We have heard Shri Harish N. Salve, learned senior counsel, appearing for the petitioner and Shri Gopal Subramanium, learned Additional Solicitor General of India, appearing for the Central Bureau of Investigation (CBI) opposing the petition. Some third parties have also filed intervention applications. These parties were given opportunity to address their arguments even though we have not allowed any of these intervention applications as it is a Criminal Miscellaneous Petition.
4. The learned counsel appearing for the petitioner drew our attention to the extracts of the judgment passed by the learned Special Judge and elaborately argued that the petitioner was not part of the criminal conspiracy charged against him. He has been acquitted by the Special Judge for the offence under Sections 3 and 5 of the TADA and no appeal has been filed against that by the State and the conviction is only under Sections 3 and 7 read with Sections 25(1A) and 25 (1B) of the Arms Act. It was argued that the conviction itself for the above offences are 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 other accused. The learned counsel for the petitioner also drew our attention to the fact that though under Section 12 of the TADA the Designated Court, when trying any offence, was competent to try any other offence with which the accused may, under Cr.P.C., be charged at the same trial if the offence is connected with such other offence. It was argued that the finding of the Designated Court would show that offence, if any, allegedly found against the petitioner was not even connected with other offences for which other accused were charged and, in that event, Section 15 of the TADA itself would not be attracted and the confession allegedly made by the petitioner to the police officer was not admissible. The learned counsel further argued that some of the observations made by the Constitution Bench of this Court in Prakash Kumar vs. State of Gujarat,1 (2005) 2 SCC 409, require slight clarification. The learned counsel further pointed out that the petitioner has got fair chance of appeal filed by him being allowed and, if the conviction and sentence is not suspended, he wo
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