Per Surya Kant, J.(For himself and on behalf of Ujjal Bhuyan, J.) [Majority View]

(A) Criminal Procedure Code, 1973 – Section 389(1) – Stay on conviction – Appellant is a public representative, having served as a Member of the Legislative Assembly in Uttar Pradesh for five consecutive terms and as a Member of Parliament for two terms – In order to suspend conviction of an individual, primary factors that are to be looked into, would be peculiar facts and circumstances of that specific case, where failure to stay such a conviction would lead to injustice or irreversible consequences – Very notion of irreversible consequences is centered on factors, including individual’s criminal antecedents, gravity of offence, and its wider social impact, while simultaneously considering facts and circumstances of the case – There is no cogent evidence to establish that Appellant has been indulging in anti-social activities and crimes such as murder or ransom – Appellant’s role in old FIR which stood as singular reference point in gang chart in new FIR, had already resulted in his acquittal – Impugned judgment also indicates absence of corroborative evidence supporting contention that Appellant had been responsible for influencing witnesses in retracting their statements – There is no reason to interpret Section 389(1) of Cr.P.C. in a narrow manner, in context of stay on an order of conviction, when there are irreversible consequences – Appellant’s case warrants order of stay on his award of conviction, though partially. (Paras 11, 13 and 15)

(B) Criminal Procedure Code, 1973 – Section 389(1) – Representation of the People Act, 1951 – Section 8(3) – Stay on conviction – Parameters – Societal interest is an equally important factor which ought to be zealously protected and preserved by Courts – Literal construction of a provision such as Section 389(1) of Cr.P.C. may be beneficial to a convict but not at the cost of legitimate public aspirations – It would be appropriate for Courts to balance interests of protecting integrity of electoral process on one hand, while also ensuring that constituents are not bereft of their right to be represented, merely consequent to a threshold opinion which is open to further judicial scrutiny – Although ‘moral turpitude’ may carry relevance within context of elected representatives, courts are bound to construe law in its extant state and confine their deliberations to those facets explicitly outlined, rather than delving into considerations pertaining to moral rectitude or ethical character of actions – This is especially true when it is solely motivated by convicted individual’s status as a political representative, with aim of disqualification pursuant to RPA – Phenomena of docket explosion or high backlog of cases should not be construed as valid grounds for thwarting legislative intent enshrined in Section 8(3) of RPA. (Paras 20, 21 and 22)

Facts of the case:

Present appeal is directed against the order dated 24.07.2023, passed by the High Court of Judicature at Allahabad, partially allowing the application filed by the Appellant under Section 389(1) of the Code of Criminal Procedure, 1973, for stay on the sentence and conviction, awarded by Additional Sessions Judge, MP/MLA Court, Ghazipur vide judgement and order dated 29.04.2023.High Court, has through the impugned order, suspended the Appellant’s sentence and granted him bail but the stay on conviction has been declined.

Findings of Court:

(i) Ghazipur Parliamentary Constituency shall not be notified for bye-election, in terms of Section 151 of RPA, till decision of Appellant’s criminal appeal by High Court.

(ii) Appellant shall, however, not be entitled to participate in proceedings of House. He shall also not have right to cast his vote in House or to draw any perks or monetary benefits.

(iii) Continuance of MP led welfare schemes in Ghazipur Parliamentary Constituency without Appellant being associated for the release of grants for such schemes, is not an irrevocable consequence as all such Schemes can be given effect, even in the absence of local parliamentary representative.

(iv) Appellant shall not be disqualified to contest future elections during the pendency of his criminal appeal before the High Court and if he is elected, such election will be subject to outcome of the First Criminal Appeal.

(v) High Court shall make an endeavour to decide the Appellant’s criminal appeal expeditiously and before 30.06.2024.

Registrar General of the High Court directed to put up this order before Chief Justice of High Court for immediate enlisting of the Criminal Appeal No. 5295 / 2023 with a request to the appropriate Bench, for an out of turn hearing and adjudication of the said appeal by 30.06.2024. Appellant directed to extend full cooperation to the High Court in this regard, failing which, this order shall be liable to variance.

Per Dipankar Datta, J.) [Minority View]

Criminal Procedure Code, 1973 – Section 389(1) – Representation of the People Act, 1951 – Section 8(3) – Stay on conviction – One needs to plead irreversible consequences to have conviction stayed, and by extension, get disqualification lifted – Right to represent a constituency cannot be construed as a Fundamental or an absolute right – Legislators bear a special duty towards their constituents and failure to secure stay of conviction may lead to loss of opportunity to contest elections – In isolation, this consideration might serve as a compelling reason to grant a stay of conviction – However, when a Parliamentarian/ legislator seeks a stay of conviction, he shoulders an additional responsibility of demonstrating how his constituents are likely to endure adverse consequences if conviction is not stayed – A Parliamentarian/legislator cannot be allowed to obtain a ‘double advantage’ where he implores Court for stay of conviction being a parliamentarian/legislator while simultaneously failing to provide full disclosure of consequences regardless of what reasons are, whether due to inadvertence, negligence, or mistake – Failing to do the same, law should be allowed to take its own course – It is bounden duty of this Court to uphold rule of law which entails equality before law and equal subjection of all classes to ordinary law of land – While recognizing importance of electorate's representation, it is necessary to maintain balance between this right and enforcement of legal accountability within democratic framework – Appeal dismissed. (Paras 59, 68, 78, 79, 80 and 81)

Result : Appeal partially allowed.