IMPORTANT POINT
Stay of conviction only in rare circumstances and order of conviction should not be suspended merely on the ground that non-suspension of such conviction may entail the consequences like removal of a government servant from service or, as it is stated in the facts of the case, disqualification as a Member of Parliament.

Rajesh H. Shukla, J.

1. Rule. Learned APP Ms. Hansa Punani waives service of rule for the respondent State.

2. The present application is filed by the applicant-appellant under section 389 of the Code of Criminal Procedure, 1973 for suspension of sentence as well as for suspension of conviction as per the passed in Special (Atrocity) Case No. 10 of 2014 by the learned 2nd Addl. Sessions Judge and Special Judge (Atrocities), Amreli dated 13.4.2016, on the grounds stated in the application.

3. Heard learned Sr. Counsel Shri ND Nanavati appearing with learned advocate Shri Devang Vyas for the appellant and learned APP Ms. Punani.

4. Learned Sr. Counsel Shri Nanavati referred to the papers and the paper-book which is supplied at the time of hearing of this application and emphasised referring to the testimony of the complainant victim, PW-13 at Exh. 54 (Dr. Dabhi) and submitted that as stated in his testimony, there was some misunderstanding which led to the altercation. However, learned Sr. Counsel Shri Nanavati submitted that he has been assaulted by one person who was with the present applicant-appellant and not by the applicant. He further submitted that it is not shown how the provisions of sec. 332 and 186 of IPC would be attracted as there is no "obstruction in discharge of duty" by the applicant. Learned Sr. Counsel Shri Nanavati referred to the background with the testimony of other witnesses including the testimony of Dr. Shobhnaben Mehta, PW-9 at exh. 43. He submitted that as a Member of Parliament, the appellant went to the hospital accompanied by the patient when the telephone was not answered by the complainant. He also submitted that in fact the appellant had also tried to contact the superior, Dr. Shobhnaben Mehta, and when it was not responded the appellant as a public servant had gone to the hospital where the incident is said to have occurred.

5. Learned Sr. Counsel Shri Nanavati submitted that the court below has failed to consider the totality of the facts and circumstances particularly the settlement arrived at which ought to have been considered. He referred to the observations and the discussion made in para 27 of the judgment and submitted that the court below has failed to consider two necessary aspects. He emphasised that there is no obstruction in discharge of duty which would attract sec. 332 and/or sec. 186 of IPC. Similarly, he submitted that the court below could have considered the effect of such order recording the sentence and he could have been awarded lesser punishment after recording conviction. For that purpose, learned Sr. Counsel Shri Nanavati referred to sec. 186 and 332 of IPC and tried to submit that the assault is made by one person along with the appellant accused and therefore at the most it would attract sec. 186 qua the present applicant. He emphasised that sec. 332 of IPC or the ingredients for the offence under sec. 332 cannot be said to have been fulfilled. Learned Sr. Counsel Shri Nanavati submitted that the ingredients for the offence under sections 34, 114 etc. are also not fulfilled and therefore he submitted that the conviction is required to be stayed as it would have a harsh effect rendering the applicant disqualified from holding the post of Member of Parliament.

6. For that purpose, learned Sr. Counsel Shri Nanavati referred to the Representation of People Act, 1951 (hereinafter referred to as the Act) and pointedly referred to the provisions of sec. 8(3). He submitted that even if the appellant succeeds in appeal, it would be an irreversible situation and damage which cannot be compensated as disqualification would be incurred and therefore the stay of conviction may be granted.

7. Learned Sr. Counsel Shri Nanavati also referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2007) 1 SCC 673 in the case of Ravikant S. Patel v. Sarvabhouma S. Bagali and referred to the observations made in para 10 which read as under:

"(10) The question whether a