Supreme Court of India
AFJAL ANSARIversusSTATE OF UP
- Citation
- 2023 INSC 1071
- Decided
- 14 December 2023
- Disposal
- Case Partly allowed
- Bench
- SURYA KANT
Holding
An appellate court may suspend a conviction under Section 389(1) CrPC when the failure to do so would cause irreparable damage and the appellant cannot be compensated, even if the offence involves moral turpitude, provided the case falls within the narrow, exceptional category.
Summary
Afzal Ansari, a sitting Member of Parliament, was convicted under Section 3(1) of the Uttar Pradesh Gangsters and Anti‑Social Activities (Prevention) Act and sentenced to four years' imprisonment, resulting in his disqualification from the Lok Sabha under Section 8 of the Representation of the People Act. He appealed the conviction and filed an application under Section 389(1) of the Code of Criminal Procedure seeking suspension of both the sentence and the conviction. The Allahabad High Court suspended the sentence and granted bail but declined to stay the conviction, prompting a Supreme Court appeal. The Court examined the parameters for suspending a conviction, the need for a prima facie case, and whether the nature of the offence (moral turpitude) precludes suspension. It held that a conviction may be suspended where failure to do so would cause irreparable damage and the appellant cannot be compensated, even for offences involving moral turpitude, provided the circumstances justify an exceptional situation. Accordingly, the Supreme Court partially allowed the appeal, suspending the conviction subject to conditions, directing that no by‑election be held for the Ghazipur constituency until the High Court decides the appeal, and limiting the appellant’s parliamentary privileges.
Issues considered
- What parameters must be considered for suspension of a conviction under Section 389(1) CrPC?
- Has the appellant made out a prima facie case for suspension of his conviction?
- Can the fact that the offence involves moral turpitude be a valid ground to deny suspension of conviction under Section 389(1) CrPC?
Legislation cited
- Code of Criminal Procedure, 1973s. 389(1)
- Representation of the People Act, 1951s. 151, s. 8, s. 8(3)
- Uttar Pradesh Gangsters and Anti‑Social Activities (Prevention) Act, 1986s. 3(1)
Subjects
suspension of convictionsection 389 CrPCrepresentation of the people actdisqualification of parliamentariansmoral turpitudeirreversible consequencesstay of convictioncriminal appealUttar Pradesh Gangsters Actelectoral representationconstitutional law
Judgment
[2023] 16 S.C.R. 969 : 2023 INSC 1071
CASE DETAILS
AFJAL ANSARI
v.
STATE OF UP
(Criminal Appeal No. 3838 of 2023)
DECEMBER 14, 2023
[SURYA KANT, DIPANKAR DATTA AND UJJAL BHUYAN, JJ.]
HEADNOTES
Issue for consideration: What are the parameters to be considered
for the suspension of conviction u/s. 389(1) CrPC; whether the appellant
has made out a prima facie case for the suspension of conviction u/s. 389(1)
CrPC; and whether conviction of an offence involving ‘moral turpitude’
can be a valid ground to deny suspension of conviction u/s. 389(1) CrPC.
Code of Criminal Procedure, 1973 – s. 389 (1) – Suspension of
conviction –Appellant-member of Parliament, convicted u/s. 3(1) of the
Gangsters Act and sentenced to four years imprisonment with a fine
of Rupees One lakh by the trial court, and consequent thereto he was
disqualified from membership in the Lok Sabha – Thereagainst, the
appellant filed an appeal as also an application u/s. 389(1) for suspension
of execution of the sentence awarded and his release on bail, during
pendency of the appeal, stay of the effect and operation of the judgement
passed by the trial court – High Court suspended the sentence and
granted bail but rejected the stay on conviction – Correctness:
Held: Per Surya Kant, J (For himself and Ujjal Bhuyan, J) High
Court held that there was no cogent evidence to establish that the appellant
was indulging in anti-social activities and crimes such as murder or ransom;
and that the appellant’s role in the old FIR, which stood reference point
in the gang chart in the new FIR, had already resulted in his acquittal –
Having applied the criteria that conviction, if allowed to operate would
lead to irreparable damage and where the convict cannot be compensated
in any monetary terms or otherwise, if he is acquitted later on, carves
Ed. Note: Hon'ble Mr. Justice Surya Kant pronounced judgment on behalf of himself
and Hon'ble Mr. Justice Ujjal Bhuyan. Hon'ble Mr. Justice Dipankar Datta pronounced a
separate judgment.
969
970 SUPREME COURT REPORTS [2023] 16 S.C.R.
out an exceptional situation, warranting an order of stay on his award
of conviction, though partially – Potential ramifications of declining to
suspend such a conviction are multifaceted – It would deprive the appellant’s
constituency of its legitimate representation in the Legislature; and the
appellant would be disqualified from contesting elections for a period of ten
years – Thus, the need to balance the interests of protecting the integrity of
the 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 – Conviction awarded to the appellant suspended subject to the
given conditions, clarifications and directions – Ghazipur parliamentary
constituency not to be notified for bye-election, till the decision of the
appellant’s appeal by the High Court – Appellant not entitled to participate
in the proceedings of the house, would not have the right to cast his vote in
the house or to draw any perks or monetary benefits. [Paras 13, 15, 17, 21,
23, 24] – Held: Per Dipankar Datta, J.(Dissenting) Allowing a convicted
parliamentarian to attend parliamentary proceedings could not only be
derogatory to the dignity of the Parliament but also derogatory to the good
sense and wisdom of the people who elected such parliamentarian – While
recognizing the importance of the electorate’s representation, it is necessary
to maintain a balance between this right and the enforcement of legal
accountability within the democratic framework – The fact that the court is
approached by a parliamentarian/legislator, by itself, should not be viewed
with such importance and indispensability – Thus, the judgment passed by
the High Court does not call for interference – Uttar Pradesh Gangsters and
Anti Social Activities (Prevention) Act, 1986. [Paras 52, 80, 48]
Code of Criminal Procedure, 1973 – s. 389(1) – Suspension of
conviction – Essential parameters:
Held: It is evident from the plain language of s. 389(1) that the
appellate court is unambiguously vested with the power to issue an order for
the suspension of a sentence or an order of conviction during the pendency
of an appeal and grant bail to the incarcerated convict, for which it is
imperative to assign the reasons in writing – The very notion of irreversible
consequences is centered on factors, including the individual’s criminal
antecedents, the gravity of the offence, and its wider social impact, while
simultaneously considering the facts and circumstances of the case – s.
389(1) should not be interpreted in a narrow manner, in the context of a stay
on an order of conviction, when there are irreversible consequences – An
AFJAL ANSARI v. STATE OF UP 971
order granting a stay of conviction should not be the rule but an exception
and should be resorted to in rare cases depending upon the facts of a case –
However, where conviction, if allowed to operate would lead to irreparable
damage and where the convict cannot be compensated in any monetary
terms or otherwise, if he is acquitted later on, that by itself carves out an
exceptional situation. [Paras 10, 11, 15]
Code of Criminal Procedure, 1973 – s. 389 (1) – Suspension of
conviction – Conviction of an offence involving ‘moral turpitude’, if a
ground to deny suspension of conviction u/s. 389(1):
Held: While invoking the concept of ‘moral turpitude’ as a
decisive factor in granting or withholding the suspension of conviction
for an individual, there is a resounding imperative to address the issue
of depoliticising criminality – There has been increasing clamour to
decriminalise polity and hold elected representatives accountable for
their criminal antecedents - It is a hard truth that persons with a criminal
background are potential threats to the very idea of democracy, since they
often resort to criminal means to succeed in elections and other ventures –
On facts, substantial doubt cast upon the appellant’s criminal antecedents
along with the veracity and threat posed by these claims, in light of the many
FIRs produced in the proceedings – Although ‘moral turpitude’ may carry
relevance within the context of elected representatives, the courts are bound
to construe the law in its extant state and confine their deliberations to those
facets explicitly outlined, rather than delving into considerations pertaining
to the moral rectitude or ethical character of actions – This is especially true
when it is solely motivated by the convicted individual’s status as a political
representative, with the aim of disqualification. [Paras 19, 20]
Judicial Notice – Appellant seeking suspension of conviction u/s.
389(1) CrPC – Appellant not enumerate any material facts regarding
irreversible consequences in his application filed before the High Court,
seeking the suspension of conviction:
Held: This principle can be traced to the statutory provisions outlined
in s. 8 of the Representation of the People Act – High Court or this Court
however, while exercising their appellate jurisdictions, well empowered to
take judicial notice of these consequences – Code of Criminal Procedure,
1973. [Para 18]
972 SUPREME COURT REPORTS [2023] 16 S.C.R.
LIST OF CITATIONS AND OTHER REFERENCES
In The Judgment of Surya Kant, J.
Naranbhai Khikhabhai Kachchadia v. State of Gujarat Crl. Appeal
No. 418/2016; Lok Prahari through General Secretary v. Election
Commission of India and others [2018] 12 SCR 169 : (2018) 18 SCC
114; Lily Thomas v. Union of India [2013] 10 SCR 1130 : (2013) 7 SCC
653; Sanjay Dutt v. State of Maharashtra (2009) 5 SCC 787; Ravikant
S. Patil v. Sarvabhouma S. Bagali [2006] 8 Suppl. SCR 1156 : (2007) 1
SCC 673 – referred to.
In The Judgment of Dipankar Datta, J.
Rahul Gandhi v. Purnesh Ishwarbhai Modi & Anr. 2023 SCC OnLine
SC 929 – distinguished.
Ravikant S. Patil v. Sarvabhouma S. Bagali [2006] 8 Suppl. SCR 1156:
(2007) 1 SCC 673; Rama Narang v. Ramesh Narang & Ors. [1995] 1 SCR
456 : (1995) 2 SCC 513; Navjot Singh Sidhu v. State of Punjab [2007] 1
SCR 1143 : (2007) 2 SCC 574; Sanjay Dutt v. State of Maharashtra (2009)
5 SCC 787; Lily Thomas v. Union of India [2013] 10 SCR 1130 : (2013) 7
SCC 653; Lok Prahari through General Secretary S.N. Shukla v. Election
Commission of India & Ors. [2018] 12 SCR 169 : (2018) 18 SCC 114;
Naranbhai Bhikhabhai Kachchadia v. State of Gujarat Criminal Appeal No.
418/2016; K.C. Sareen v. CBI (2001) 6 SCC 584; State of Maharashtra v.
Balakrishna Dattatraya Kumbhar [2012] 9 SCR 601 : (2012) 12 SCC 384;
Shyam Narain Pandey v. State of U.P [2014] 8 SCR 923 : (2014) 8 SCC
909; K. Prabhakaran v. P. Jayarajan [2005] 1 SCR 296 : (2005) 1 SCC 754;
Lalsai Khunte v. Nirmal Sinha (2007) 9 SCC 330; K. Anandan Nambiar, In
Re AIR 1952 Madras 117; Public Interest Foundation and others v. Union
of India and Another (2019) 3 SCC 224; Jyoti Basu v. Debi Ghosal [1982]
3 SCR 318 : (1982) 1 SCC 691; Pradeep Kumar Sonthalia v. Dhiraj Prasad
Sahu (2021) 6 SCC 523; Ashish Shelar v. Maharashtra Legislative Assembly
(2022) 12 SCC 273 – referred to.
Constituent Assembly Debates, Volume 8 (19th May, 1949) – referred
to.
AFJAL ANSARI v. STATE OF UP 973
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
3838 of 2023.
From the Judgment and Order dated 24.07.2023 of the High Court of
Judicature at Allahabad in CRLMA No. 01 of 2023.
Appearances:
Dr. Abhishek Manu Singhvi, C. U. Singh, S. Wasim A. Qadri, Sr.
Advs., Jubair Ahmad Khan, Tamim Qadri, Anuroop Chakravarti, Saeed
Qadri, Shraveen Kumar Verma, Siddarth Seem, Saahil Gupta, Ms. Udita
Singh, Advs. for the Appellant.
K.M. Nataraj, A.S.G., Sharan Dev Singh Thakur, A.A.G., Ms. Ruchira
Goel, Siddharth Thakur, Ms. Indira Bhakar, Adit Jayeshbhai Shah, Ajay
Singh, Ms. Keerti Jaya, Advs. for the Respondent.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
SURYA KANT, J.
Leave granted.
2. This appeal is directed against the order dated 24.07.2023, passed
by the High Court of Judicature at Allahabad (hereinafter, ‘High Court’),
partially allowing the application filed by the Appellant under Section 389(1)
of the Code of Criminal Procedure, 1973 (hereinafter, ‘CrPC’), for the
stay on the sentence and conviction, awarded by the Learned Additional
Sessions Judge, MP/MLA Court, Ghazipur (hereinafter, ‘Trial Court’)
vide judgement and order dated 29.04.2023. The High Court, has through
the impugned order, suspended the Appellant’s sentence and granted him
bail but the stay on conviction has been declined.
Fਁਃਔਓ:
3. At this juncture, it is imperative to delve into the factual matrix to
set out the context of the present proceedings.
974 SUPREME COURT REPORTS [2023] 16 S.C.R.
3.1. The 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. Until the recent
disqualification following the judgment rendered by the Trial Court, the
Appellant was the incumbent Member of Parliament for the Ghazipur
Constituency, since 2019. The Appellant currently holds various positions,
including roles in the Ghazipur Standing Committee on Agriculture,
Animal Husbandry, and Food Processing, as well as the Ghazipur District
Development Coordination and Monitoring Committee.
3.2. On 19.11.2007, PW-1, who was the Station House Officer at
the Mohammadabad Kotwali Police Station, received information from
anonymous sources during his routine patrol with regards to the operations of
a gang led by one Mukhtar Ansari in the area, who was reportedly involved
in various illicit activities such as murder, extortion, kidnapping and other
criminal acts, carried out for political gain. It was further informed that the
said gang had instilled fear and terror in the public, discouraging everyone
from opposing their actions. Based on such information, PW-1 prepared
a comprehensive gang chart under the Uttar Pradesh Gangsters and Anti-
Social Activities (Prevention) Act, 1986 (hereinafter, ‘UP Gangsters
Act’) and obtained necessary approvals from the Police authorities and the
District Magistrate of Ghazipur. On the very same day, Case Crime No.
1052/2007 was registered under Section 3(1) of the UP Gangsters Act at the
Mohammadabad Police Station in the Ghazipur District of Uttar Pradesh
(hereinafter, ‘New FIR’). This registration emerged from the earlier Case
Crime No. 589/2005, (hereinafter, ‘Old FIR’), which was a murder case, in
which the Appellant had been accused of conspiracy but was subsequently
acquitted, as explained briefly hereinafter.
3.3. It is crucial to emphasise at this stage that the Appellant has been
found involved in multiple FIRs filed throughout the State of Uttar Pradesh.
To provide a concise overview, a summary of these FIRs is presented
below, elucidating their context and significance in relation to the ongoing
proceedings:
i. Case Crime No. 28/1998 was registered under Section 171F of the
Indian Penal Code, 1860 (hereinafter, ‘IPC’) and Section 135(2)
of the Representation of People’s Act, 1951 (hereinafter, ‘RPA’)
AFJAL ANSARI v. STATE OF UP 975
[SURYA KANT, J.]
on 16.02.1998, at Police Station Nonhara, District Chandauli,
Uttar Pradesh, for violation of the Model Code of Conduct during
the election period. The Appellant has not yet been summoned
by the investigating officer or the concerned Court in this case.
ii. Case Crime No. 260/2001 was registered on 09.08.2001, at Police
Station Mohammadabad, Uttar Pradesh, under Sections 147, 148
and 353 of the IPC, and Section 3 of the Prevention of Public
Properties from Damages Act, 1984 along with Section 7 of the
Criminal Law Amendment Act, 1932. The Appellant has since
been granted bail in this case.
iii. Case Crime No. 493/2005 was registered under Sections
302, 506, 120B of the IPC on 27.06.2005, at Police Station
Mohammadabad, Uttar Pradesh in which the Appellant was
named as a conspirator. However, since the Appellant was found
to have played no particular role in the subject crime, his name
was dropped during the early stages of the investigation and no
chargesheet was filed against him.
iv. Case Crime No. 589/2005 was registered under Sections 147,
148, 149, 307, 302, 404 and 120-B of the IPC, at Police Station
Bhanvar Kol, District Ghazipur, on 29.11.2005. The Appellant
was accused of hatching conspiracy in the said murder case.
The investigation of this case was entrusted to the Central
Bureau of Investigation (hereinafter, ‘CBI’) and the trial was
subsequently transferred to the CBI Court at Rouse Avenue, New
Delhi, wherein the Appellant was acquitted. The CBI has filed an
appeal challenging the acquittal of the Appellant, but till date no
adverse order has been suffered by him. Further, this is the only
case mentioned in the gang chart that was prepared and relied
upon in the instant case.
v. Crime Case No. 1051/2007 was registered under Sections
302, 120-B, 436, 427 of the IPC and Sections 3, 4 and 5 of
the Explosives Act, 1884 and Section 7 of the Criminal Law
Amendment Act, 1932. In this case, the name of the Appellant
was dropped after it was deduced that he had no role to play in
the reported crime. The Appellant was neither chargesheeted
976 SUPREME COURT REPORTS [2023] 16 S.C.R.
nor summoned by the concerned Trial Court in this particular
instance.
vi. Case Crime No. 607/2009 under Sections 171 and 188 of the IPC
was registered on 11.04.2009 at Police Station, Mohammadabad,
Uttar Pradesh, alleging violation of the Model Code of Conduct
during the election period. The Appellant has admittedly not been
summoned in this case.
vii. Case Crime No. 18/2014 was registered under Sections 171J,
188 of the IPC and Section 121(2) of the RPA, at Police Station
Chakarghatta, District Chandauli, Uttar Pradesh and the Appellant
has already been granted bail in this matter.
3.4. Adverting to the New FIR, the Trial Court held the Appellant guilty
under Section 3(1) of the UP Gangsters Act and awarded him a sentence
of four years of simple imprisonment, along with a fine of Rs. 1,00,000/-
(Rupees One Lakh only). Consequently, Notification No. S.O. 1994 dated
01.05.2023 was published by the Lok Sabha Secretariat in the Gazette of
India, disqualifying the Appellant from membership in the Lok Sabha,
effective from the date of his conviction on 29.04.2023.
3.5. The Appellant thereafter preferred Criminal Appeal No.
5295/2023 under Section 374(2) of the CrPC before the High Court,
challenging the judgment and order of his conviction and sentence
dated 29.04.2023 (hereinafter ‘First Criminal Appeal’). He also filed
an application under Section 389(1) of the CrPC, seeking inter alia, (i)
suspension of the sentence awarded by the judgement and order dated
29.04.2023 and his release on bail, during pendency of the First Criminal
Appeal; (ii) stay of the effect and operation of the judgement and order
dated 29.04.2023; and (iii) stay of realisation of fine during pendency of
the appeal.
3.6. As noticed earlier, the High Court has partially allowed the
application filed by the Appellant. The execution of the sentence has been
stayed and bail has been granted but stay on conviction has been declined.
The instant appeal is thus confined to the Appellant’s prayer for the stay
of his conviction, during the pendency of his Criminal Appeal before the
High Court.
AFJAL ANSARI v. STATE OF UP 977
[SURYA KANT, J.]
CONTENTIONS OF PARTIES
4. We have heard Learned Senior Counsel for the parties at a
considerable length and perused the documents brought on record.
5. Dr. Abhishek Manu Singhvi, learned Senior Counsel for the
Appellant, argued that the High Court erred in not granting suspension
of the conviction, especially in light of the fact that disqualification from
membership of the Parliament, leads to irreversible consequences such as:
(a) the loss of the next six months as Member of the Parliament in the Lok
Sabha; and (b) disqualification from contesting elections for a total period
of ten years. He further contended that such a disqualification would not
only result in the Appellant losing his right to represent his constituency but
would also rob his constituency of its representation before the Parliament.
Learned Senior Counsel also highlighted the infirmities in the impugned
order of the High Court in denying stay of conviction, along with the material
contradictions in the prosecution case against the Appellant.
6. Dr. Singhvi lent support to his contentions by citing decisions of
this Court in Naranbhai Khikhabhai Kachchadia v. State of Gujarat1 and
Lok Prahari through General Secretary v. Election Commission of India
and others,2 among others.
7. Mr. K.M. Nataraj, learned Additional Solicitor General, representing
the State of UP, strongly contested the prayer for suspension of conviction
on the ground that the Appellant having been convicted under Section 3(1)
of the UP Gangster Act, with a sentence of more than two years under the
said Act, automatically suffered disqualification by virtue of Section 8 of
RPA. He underscored the contention that the stay or suspension of conviction
under S. 389(1) of the CrPC is to be granted as an exception and not as
a rule. Furthermore, Mr. Natraj vehemently contended that the right to
represent or be represented is not a Fundamental Right and the Appellant’s
case cannot be deemed to be an exceptional or extraordinary circumstance
that warrants suspension of conviction. He also relied on multiple decisions
of this Court including, Lily Thomas v. Union of India3 and Sanjay Dutt
1 Crl. Appeal No. 418 / 2016.
2 (2018) 18 SCC 114, para 16.
3 (2013) 7 SCC 653, para 35.
978 SUPREME COURT REPORTS [2023] 16 S.C.R.
v. State of Maharashtra,4 to buttress his assertion that the suspension of
conviction ought to be done only in rare and exceptional cases.
8. In our considered opinion, the questions that fall for deliberation,
are set out as follows:
i. What are the parameters to be considered for the suspension of
conviction under Section 389(1) of the CrPC?
ii. Whether the Appellant has made out a prima facie case for the
suspension of conviction under Section 389(1) of the CrPC?
iii. Whether conviction of an offence involving ‘moral turpitude’ can
be a valid ground to deny suspension of conviction under Section
389(1) of the CrPC?
ANALYSIS
9. We have taken into consideration the Appellant’s extensive history
of holding various positions of responsibility, along with the allegations
that culminated in his conviction and subsequent disqualification from his
position as Member of the Parliament in the Lok Sabha.
10. At the outset, it is imperative to delineate the essential parameters
that must be meticulously examined to determine whether a case can be made
out for suspension of conviction under Section 389(1) of the CrPC. Section
389(1) enjoys upon the Appellate Court, the power to issue an order for the
suspension of a sentence or an order of conviction during the pendency of
an appeal. It may be thus of paramount importance to scrutinise the precise
language of Section 389(1) of the CrPC, which is articulated as follows:
“S. 389(1) – Pending any appeal by a convicted person, the Appellate
Court may, for reasons to be recorded by it in writing, order that the
execution of the sentence or order appealed against be suspended
and, also, if he is in confinement, that he be released on bail, or on
his own bond.”
11. It becomes manifestly evident from the plain language of the
provision, that the Appellate Court is unambiguously vested with the power
4 (2009) 5 SCC 787, para 12.
AFJAL ANSARI v. STATE OF UP 979
[SURYA KANT, J.]
to suspend implementation of the sentence or the order of conviction under
appeal and grant bail to the incarcerated convict, for which it is imperative
to assign the reasons in writing. This Court has undertaken a comprehensive
examination of this issue on multiple occasions, laying down the broad
parameters to be appraised for the suspension of a conviction under Section
389(1) of the CrPC. There is no gainsaying that in order to suspend the
conviction of an individual, the primary factors that are to be looked into,
would be the peculiar facts and circumstances of that specific case, where
the failure to stay such a conviction would lead to injustice or irreversible
consequences.5 The very notion of irreversible consequences is centered on
factors, including the individual’s criminal antecedents, the gravity of the
offence, and its wider social impact, while simultaneously considering the
facts and circumstances of the case.
12. Turning to the case in hand, the Appellant was convicted on the
basis of a gang chart that hinged solely on an Old FIR, where the Appellant
had already been acquitted vide judgement dated 03.07.2019. Thereafter,
the New FIR was registered, in which the Appellant had been convicted by
the Trial Court under Section 3(1) of the UP Gangster Act. The sequence of
events, beginning from the registration of the New FIR until the rejection
of the Appellant’s plea for suspension of conviction by the High Court, is
beset with some fundamental misconceptions and, therefore deserves closer
legal scrutiny.
13. Upon careful consideration of the judgement of the Trial Court
and the order passed by the High Court, it appears to us that, firstly, the
impugned order suggests that there is no cogent evidence to establish that
the Appellant has been indulging in anti-social activities and crimes such as
murder or ransom. Secondly, the Appellant’s role in the Old FIR, which stood
as the singular reference point in the gang chart in the New FIR, had already
resulted in his acquittal. Thirdly, the impugned judgment also indicates
the absence of corroborative evidence supporting the contention that the
Appellant had been responsible for influencing witnesses in retracting their
statements. Lastly, the High Court in its impugned order has meticulously
highlighted that in the various FIRs that had been registered against the
5 Ravikant S. Patil v. Sarvabhouma S. Bagali, (2007) 1 SCC 673, para 15 and 16.5.
980 SUPREME COURT REPORTS [2023] 16 S.C.R.
Appellant, either he was not chargesheeted or the investigating agencies
had exonerated him.
14. The High Court has further held that owing to the age of the
Appellant and the extensive backlog of pending cases, the prospects of a
prompt hearing of the First Criminal Appeal were low. It thus came to the
conclusion that the refusal to suspend the sentence might render the very
appeal otiose. Although the High Court stayed the execution of the sentence
and granted bail to the Appellant, it refused to suspend the conviction
itself. The High Court justified such a recourse, after making reference to
a multitude of judgments from this Court. While the impugned judgment
remains largely sound in its approach to affording relief in terms of bail and
staying the sentence, we are unable to agree, partly, with its approach in
declining the suspension of conviction, for those very reasons.
15. This Court has on several occasions opined that there is no
reason to interpret Section 389(1) of the CrPC in a narrow manner, in the
context of a stay on an order of conviction, when there are irreversible
consequences. Undoubtedly, Ravikant Patil v. Sarvabhouma S. Bagali,6
holds that an order granting a stay of conviction should not be the rule but
an exception and should be resorted to in rare cases depending upon the
facts of a case. However, where conviction, if allowed to operate would
lead to irreparable damage and where the convict cannot be compensated
in any monetary terms or otherwise, if he is acquitted later on, that by itself
carves out an exceptional situation. Having applied the specific criteria
outlined hereinabove to the present factual matrix, it is our considered
view that the Appellant’s case warrants an order of stay on his award of
conviction, though partially.
16. It remains uncontested that the foundation of the New FIR,
which is the origin point of the present proceedings, rests solely on a
general statement and involved the rekindling of the Old FIR, in which the
Appellant had already been acquitted. Though the aforementioned gang
chart projects the Appellant as a repeat offender, the fact remains that he
has not been convicted in any prior case, apart from the case presently
under consideration. In this context, the detailed circumstances elaborated
6 (2007) 1 SCC 673, para 15.
AFJAL ANSARI v. STATE OF UP 981
[SURYA KANT, J.]
hereinabove, serve as compelling reasons to advocate for the suspension of
the Appellant’s conviction and the consequent disqualification.
17. We say so primarily for the reason that the potential ramifications
of declining to suspend such a conviction are multifaceted. On the one hand,
it would deprive the Appellant’s constituency of its legitimate representation
in the Legislature, since a bye-election may not be held given the remainder
tenure of the current Lok Sabha. Conversely, it would also impede the
Appellant’s ability to represent his constituency based on the allegations, the
veracity whereof is to be scrutinised on a re-appraisal of the entire evidence
in the First Criminal Appeal pending before the High Court. This would
potentially lead to de facto incarceration of the Appellant for a period of four
years under the UP Gangsters Act and an additional six-year disqualification
period, even if he is eventually acquitted, which would effectively disqualify
him from contesting elections for a period of ten years.
18. It is essential to emphasize that while the Appellant did not
enumerate any material facts regarding irreversible consequences in his
application filed before the High Court, seeking the suspension of conviction,
this principle can be traced to the statutory provisions outlined in Section
8 of the RPA. The High Court or this Court however, while exercising
their Appellate jurisdictions, are well empowered to take judicial notice of
these consequences. Additionally, the Respondent also does not contest the
fact that if the conviction is not stayed, the Appellant would not only face
disqualification as a Member of the Eighteenth Lok Sabha but would also
incur disqualification to participate in future elections for Parliamentary
or State Legislative seats. Taking into consideration the consistent legal
position adopted in this regard, the severity of these outcomes underscores
the urgency and gravity of the matter at hand.
19. In this context it is crucial that we also address the final issue
which is before us for consideration, i.e., the question of relevance of
‘moral turpitude’ in the present circumstances. While contemplating to
invoke the concept of ‘moral turpitude’ as a decisive factor in granting
or withholding the suspension of conviction for an individual, there is a
resounding imperative to address the issue of depoliticising criminality.
There has been increasing clamour to decriminalise polity and hold elected
representatives accountable for their criminal antecedents. It is a hard truth
982 SUPREME COURT REPORTS [2023] 16 S.C.R.
that persons with a criminal background are potential threats to the very
idea of democracy, since they often resort to criminal means to succeed in
elections and other ventures. In the present context too, substantial doubt has
been cast upon the Appellant’s criminal antecedents along with the veracity
and threat posed by these claims, in light of the many FIRs that have been
produced in these proceedings.
20. While this concern is undeniably pertinent, it remains the duty of
the courts to interpret the law in its current form. Although ‘moral turpitude’
may carry relevance within the context of elected representatives, the courts
are bound to construe the law in its extant state and confine their deliberations
to those facets explicitly outlined, rather than delving into considerations
pertaining to the moral rectitude or ethical character of actions. This is
especially true when it is solely motivated by the convicted individual’s
status as a political representative, with the aim of disqualification pursuant
to the RPA.
21. Having said so, we hasten to hold that societal interest is an equally
important factor which ought to be zealously protected and preserved by
the Courts. The literal construction of a provision such as Section 389(1)
of the CrPC may be beneficial to a convict but not at the cost of legitimate
public aspirations. It would thus be appropriate for the Courts to balance
the interests of protecting the integrity of the 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.
22. We are of the further considered opinion that, the phenomena of
docket explosion or the high backlog of cases should not be construed as
valid grounds for thwarting the legislative intent enshrined in Section 8(3)
of the RPA, which inter alia provides that:
“…..(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….”
AFJAL ANSARI v. STATE OF UP 983
[SURYA KANT, J.]
23. It is therefore imperative to weigh the competing interests presented
by both the Appellant and the State. This case pertains to (a) the Appellant’s
disqualification as a Member of the Lok Sabha under Section 8(3) of the
RPA, which disentitles a person who has been convicted and sentenced for
a period exceeding two years, from holding office or contesting elections;
and (b) the State’s pursuit of a conviction under Section 3(1) of the UP
Gangsters Act, which penalises individuals labelled as a ‘gangster’ for
participation in organised crime and engaging in anti-social activities. While
the pending appeal raises significant legal and factual issues, it is exigent
that the Appellant’s future not be left hanging in the balance solely due to
the said conviction. In such instances, where the Appellant’s disqualification
and the State’s criminal proceedings intersect, it becomes incumbent upon
the Court in which the appeal is pending, to hear the matter out of turn and
expeditiously adjudicate the same.
CONCLUSION AND DIRECTIONS
24. We, thus, deem it appropriate to partially allow this appeal and
suspend the conviction awarded to the Appellant in Special Sessions
Trial No. 980/2012 subject to the following conditions, clarifications and
directions:
i. The Ghazipur Parliamentary Constituency shall not be notified
for bye-election, in terms of Section 151 of the RPA, till the
decision of the Appellant’s criminal appeal by the High Court;
ii. The Appellant shall, however, not be entitled to participate in
the proceedings of the House. He shall also not have the right
to cast his vote in the House or to draw any perks or monetary
benefits;
iii. The continuance of MP led welfare schemes in the Ghazipur
Parliamentary Constituency without the 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 the local parliamentary
representative;
iv. The Appellant shall not be disqualified to contest future
election(s) during the pendency of his criminal appeal before
984 SUPREME COURT REPORTS [2023] 16 S.C.R.
the High Court and if he is elected, such election will be subject
to outcome of the First Criminal Appeal; and
v. The High Court shall make an endeavour to decide the Appellant’s
criminal appeal expeditiously and before 30.06.2024.
25. Consequently, we direct the Registrar General of the High Court
to put up this order before Hon’ble The Chief Justice of the 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. The Appellant is directed to extend full
cooperation to the High Court in this regard, failing which, this order shall
be liable to variance.
26. It is clarified that we have not expressed any opinion on the merits
of the case and the First Criminal Appeal shall be decided by the High Court
on its own merits.
27. The present appeal is disposed of in the above terms.
DIPANKAR DATTA, J.
1. The draft of the judgment prepared by Hon’ble Surya Kant,
J., speaking for His Lordship and Hon’ble Ujjal Bhuyan, J., is so well
considered and supplemented with an enviable degree of articulation that it
almost prompted my concurrence. However, with all the respect and humility
at my command, I have not been able to be ad idem with the Hon’ble Judges
in the majority. I believe that the importance of the question involved would
compel me to tread the path of dissent en route a different end.
2. The assail in this appeal is to a judgment and order dated 24th July,
2023 of the High Court of Judicature at Allahabad (“High Court”, hereafter)
whereby a criminal miscellaneous application1 under section 389(1) of
the Code of Criminal Procedure, 1973 (“Cr. PC”, hereafter) filed by the
appellant, in connection with an appeal under section 374(2)2 thereof, was
partly allowed. The sole question that emerges for a decision on this appeal is
1 No. 01/2023
2 Criminal Appeal No. 5295/2023
AFJAL ANSARI v. STATE OF UP 985
[DIPANKAR DATTA, J.]
whether the High Court was justified in spurning the prayer of the appellant
for stay of the order appealed against while it proceeded to grant his prayer
for suspension of execution of sentence, in exercise of power conferred by
section 389(1) of the Cr. PC.
3. The appellant is a member of Parliament, having been elected to
the 17th Lok Sabha from Ghazipur constituency in 2019. He suffered a
conviction under section 3(1) of the Uttar Pradesh Gangsters and Anti-
Social Activities (Prevention) Act, 1986 (“Gangsters Act”, hereafter) vide
judgment of the Special MP/MLA Court, Ghazipur (“Trial Court”, hereafter)
dated 29th April, 20233, consequent whereto he was sentenced to four years
imprisonment together with a fine of Rupees One lakh. Aggrieved thereby,
he approached the High Court for suspension of execution of the sentence
as well as for suspension of the order appealed against which has succeeded
in part as noted above. The refusal of the High Court to stay the conviction
of the appellant has resulted in his disqualification from the membership
of Parliament by operation of law, i.e., section 8(3) of the Representation
of the People Act, 1951 (“the RoP Act”, hereafter), which has duly been
notified by the Lok Sabha Secretariat4. As a sequel thereto, the appellant
stands barred from partaking in the electoral process for six years from the
date of serving his sentence.
4. Hon’ble Surya Kant, J. in His Lordship’s judgment has given a
resume of the facts leading to the appeal carried by the appellant before this
Court. Having regard thereto as well as the question that arises for decision,
it is not considered expedient to repeat the same. However, in course of
hearing of this appeal, the parties through their respective learned senior
counsel have advanced elaborate submissions which are proposed to be
noted a little later.
5. In the impugned judgment and order, the High Court determined
that the threshold for suspension of the order under appeal was not reached
in the present case. It observed that suspension of the order appealed
against is not the rule but an exception to be availed only in rare cases
3 Special Sessions Trial No. 980/2012
4 vide notification bearing S.O. No. 1994 published in the Gazette of India dated 1st
May, 2023
986 SUPREME COURT REPORTS [2023] 16 S.C.R.
and that exceptional circumstances have to be brought to the notice of
the Court before the relief of such a suspension could be granted. Unless
the attention of the Court is directed towards specific consequences that
would befall the appealing convict on account of the conviction, he cannot
urge for suspension of the order. It was noticed by the High Court that
the only ground urged by the appellant for seeking relief of suspension of
the order under appeal was that if such relief were not granted, he would
remain disqualified. According to the High Court, absolutely nothing was
mentioned in the affidavit filed by the appellant about the ramifications of
the conviction. Another consideration which weighed with the High Court
was the objective of the Gangsters Act, being a law enacted to maintain
public order for reining in organised crime and anti-social activities in the
state of Uttar Pradesh as well as the severity of the accusations against the
appellant. Consequently, it was ruled that although the appellant had made
out a case of suspension of execution of sentence but could not fulfil the
conditions for staying his conviction.
6. Dr. Abhishek Manu Singhvi, learned senior counsel appearing for
the appellant, assailed the impugned order by advancing the following
submissions:
a. The failure to stay the conviction would inflict irreparable harm
to the appellant. There is only a primary conviction, against
which an appeal has been carried to the High Court. Having
regard to the huge pendency of appeals in the High Court, the
said appeal is not likely to be heard in the near future resulting
in the appellant being deprived of engaging in electoral politics
for around 10 years. The case is at the stage of first appeal, and
refusal to stay the conviction of the appellant at this stage would
be an onerous disproportionate limitation.
b. The appellant has been a member of the Uttar Pradesh Legislative
Assembly five times and a member of the Lok Sabha twice. He
has not been convicted for any offence in the past, much less any
heinous offence, apart from the conviction under consideration.
In a particular case, viz. Case Crime No. 589/2005, the appellant
has been acquitted after a full-fledged trial. The offence, in the
case under consideration, though has been held to be proved, the
AFJAL ANSARI v. STATE OF UP 987
[DIPANKAR DATTA, J.]
judgment of conviction suffers from various infirmities based
whereon the High Court itself proceeded to suspend execution
of the sentence. There could be no cogent ground for not staying
the conviction for the self-same reasons. The infirmities present
in the judgment and order rendered by the Trial Court and the
infirmity from which the judgment and order under appeal suffer
would constitute ‘exceptional circumstances’ empowering this
Court to stay the conviction.
c. The electoral constituency of Ghazipur is not being represented
in Parliament due to the appellant’s disqualification arising
out of his conviction. The people of Ghazipur are suffering as
they do not have a legislative representative who can highlight
their grievances in Parliament, and only executive and judicial
remedies are left available to them.
d. Further, the execution of more than two dozen projects under
the Members of Parliament Local Area Development Scheme5,
which have been initiated by the appellant, are now upended and
uncertain. The damage likely to be caused by reason thereof is
such that it cannot be undone at a later stage.
e. Balance of convenience in the present case falls squarely in favour
of the appellant. The appellant would suffer irreversible harm if
the conviction is not stayed as he would remain disqualified and
would not be able to participate even in the General Elections
scheduled for 2024. If the appellant was to be ultimately found
not guilty by the High Court, then no Court would be able to turn
the clock back and remedy the harm suffered by the appellant.
However, if the conviction were to be stayed and down the line
if the High Court affirmed the conviction by the Trial Court,
the appellant would in any case be bound to serve his sentence
without any prejudice caused to the respondent.
f. Irreversibility of the position is one important factor that the High
Court failed to bear in mind, while refusing to stay the conviction.
5 MPLAD Scheme
988 SUPREME COURT REPORTS [2023] 16 S.C.R.
7. Resting on the aforesaid submissions, Dr. Singhvi prayed that
while setting aside the judgment and order of the High Court, to the extent
impugned in this appeal, the conviction recorded against the appellant be
stayed.
8. Per contra, Mr. K.M. Nataraj, learned Additional Solicitor General
appearing for the respondent, supported the impugned judgment and order
and advanced the following contentions:
a. The standards for suspension of sentence and stay of conviction
are different. Stay of conviction can only be ordered by the court
when exceptional circumstances are shown to exist. Dissimilar to
suspension of execution of sentence, it is not a matter of practice
to stay the conviction at the stage of first appeal. No exceptional
circumstance having been shown to exist, the High Court has
passed a reasoned judgment that ought not to be interfered on
sparse grounds.
b. The conviction in the present case is under the Gangsters Act
which is of a serious nature and stay of conviction in this case
would not be in consonance with the settled principles laid down
by this Court in several of its decisions.
c. The appellant is a notorious criminal, with numerous criminal
antecedents. Reference was made to a list in this regard forming
part of the reply of the respondent.
d. The acquittal in Case Crime No. 589/2005 could be attributed
to witness intimidation by the appellant as most witnesses in
that trial turned hostile and did not support the prosecution case.
The appellant was not acquitted unequivocally on merits. In any
event, an appeal against the acquittal is pending.
9. Learned ASG also invited our attention to the contents of the affidavit
filed by the appellant before the High Court in support of his prayer for
suspension of the order under appeal as well as the finding returned by the
High Court in that behalf. He contended that apart from referring to the
fact of disqualification incurred by him by reason of the conviction, the
appellant had made no disclosure of facts and figures to demonstrate the
consequences that he is likely to suffer should his prayer for suspension of
AFJAL ANSARI v. STATE OF UP 989
[DIPANKAR DATTA, J.]
the order under appeal be not granted. Referring to the arguments advanced
by Dr. Singhvi on behalf of the appellant, learned ASG contended that the
same do not deserve consideration being beyond the four corners of the
affidavit of the appellant before the High Court. It was also his contention
that the High Court rightly observed that “there is absolutely nothing that
what consequences are likely to fall upon conviction”.
10. Reiterating that no exceptional circumstances deserving suspension
of the order appealed against having been brought out by the appellant,
learned ASG concluded by submitting that the appeal may be dismissed.
11. Reference has been made by learned senior counsel appearing
for the parties to multiple decisions of this Court on the subject of stay/
suspension of conviction, which need to be adverted to prior to deciding the
contentious issue. In the process, it would be essential to consider certain
other decisions too having a bearing on the question that this Court is now
tasked to decide.
12. The decision in Ravikant S. Patil v. Sarvabhouma S. Bagali6,
heavily relied on by Dr. Singhvi, in its turn, relied on Rama Narang
v. Ramesh Narang & Ors.7. Ravikant S. Patil (supra) illuminates the
position of law with respect to stay/suspension of conviction. This Court
was considering an appeal under section 116-A of the RoP Act preferred
by the appellant who was an elected member of the Karnataka Legislative
Assembly. By judgment and order dated 28th July, 2000, the appellant was
convicted and sentenced to undergo imprisonment for a period of 7 (seven)
years by the Addl. Sessions Judge, Solapur, Maharashtra. Immediately
thereafter, a criminal appeal was preferred by the appellant challenging
the judgment of conviction and order of sentence. Pending the appeal, the
Bombay High Court granted stay of the execution of the sentence. Fresh
elections to the Karnataka Legislative Assembly having been notified in
the early part of 2004, the appellant once again moved the Bombay High
Court and obtained an order dated 26th March, 2004 staying his conviction.
The appellant having filed his nomination by the last date, i.e., 31st March,
2004, objection was lodged by the respondent which was turned down.
6 (2007) 1 SCC 673
7 (1995) 2 SCC 513
990 SUPREME COURT REPORTS [2023] 16 S.C.R.
In the election that followed, the appellant came to be elected. Upon an
election petition being filed by the respondent, the same succeeded before
the Karnataka High Court on the ground that the appellant stood disqualified
in terms of provisions contained in section 8 of the RoP Act to contest an
election. The principle which is laid down by this decision is that stay of
conviction is the exception, and to avail that exception the appellant will
have to show irreversible consequence and injustice. The operative part is
reproduced hereinbelow:
“15. 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. Where the execution of the
sentence is stayed, the conviction continues to operate. But where the
conviction itself is stayed, the effect is that the conviction will not be
operative from the date of stay. An order of stay, of course, does not
render the conviction non-existent, but only non-operative. Be that as
it may. Insofar as the present case is concerned, an application was
filed specifically seeking stay of the order of conviction specifying
the consequences if conviction was not stayed, that is, the appellant
would incur disqualification to contest the election. The High Court
after considering the special reason, granted the order staying the
conviction. As the conviction itself is stayed in contrast to a stay of
execution of the sentence, it is not possible to accept the contention
of the respondent that the disqualification arising out of conviction
continues to operate even after stay of conviction.
***
16.5. All these decisions, while recognising the power to stay
conviction, have cautioned and clarified that such power should be
exercised only in exceptional circumstances where failure to stay the
conviction, would lead to injustice and irreversible consequences.”
(emphasis supplied)
Since the appellant was not disqualified to file his nomination as well
as to contest the election, this Court set aside the impugned judgment and
order while allowing the appeal.
13. Turning to Rama Narang (supra), a decision rendered by a 3-Judge
AFJAL ANSARI v. STATE OF UP 991
[DIPANKAR DATTA, J.]
Bench of this Court, it is observed that this decision was not formally cited
by either of the parties though interpretation of section 389, Cr. PC and the
law laid down therein for guiding the courts to suspend execution of the
sentence and the order appealed against have significant relevance for the
purpose of deciding this appeal. There, the appellant (Managing Director
of the company in question) was convicted of certain offences punishable
under the Indian Penal Code, 1860 (“IPC”, hereafter) and sentenced to
three months’ and two and a half years’ rigorous imprisonment together
with fine of Rs.5,000/-. The conviction and sentence were challenged by the
appellant under section 374(2) of the Cr. PC before the Delhi High Court.
While hearing an application under section 389(1) thereof, stay of operation
of the impugned order was directed and he was granted bail. Despite such
conviction resulting in the appellant’s disqualification under section 267 of
the Companies Act, 1956 to remain as the Managing Director, he continued
to attend Board meetings of the company in question. Resolutions adopted
in meetings attended by the appellant were challenged in a Company
Petition filed before the Bombay High Court by the respondent, which
was subsequently withdrawn. There were other proceedings between the
parties before the Company Law Board, to which reference in detail need
not be made. Ultimately a suit came to be instituted before the Bombay
High Court by the appellant and others and a learned single Judge granted
interim relief which enabled the appellant to continue as the Managing
Director. An appeal was carried therefrom to the Division Bench, which
was partly allowed. That part of the impugned order enabling the appellant
to continue as the Managing Director was set aside. This order was then
challenged before this Court. Inter alia, what fell for examination in that case
was whether the power under section 389(1) of the Cr. PC could be invoked
to stay the conviction. A three-Judge Bench of this Court held that there is
no reason why a narrow meaning to section 389(1) should be given. Even
otherwise, it was held that the High Courts have the power under section
482 of the Cr. PC to order such a stay. This Court further held that although
an order of conviction by itself is not capable of execution under the Cr.
PC, but in certain situations and in a limited sense, an order of conviction
could be executed, that is to say, when it may result in incurring of some
disqualification under other enactments. In such cases, the Court also held that
it was permissible to invoke the power under section 389(1) of the Cr. PC for
992 SUPREME COURT REPORTS [2023] 16 S.C.R.
staying the conviction. On facts, the Court held that the appellant had not
moved the Delhi High Court with clean hands and had attempted to play
hide and seek for which the said court could not even apply its mind as to
whether the circumstances before it did deserve a stay of the conviction.
The reasoning for such conclusions is traceable to paragraphs 16 and 19 of
the decision, reading as follows:
“16. In certain situations the order of conviction can be executable, in
the sense, it may incur a disqualification as in the instant case. In such a
case the power under Section 389(1) of the Code could be invoked. In
such situations the attention of the Appellate Court must be specifically
invited to the consequence that is likely to fall to enable it to apply its
mind to the issue since under Section 389(1) it is under an obligation
to support its order ‘for reasons to be recorded by it in writing’. If
the attention of the Court is not invited to this specific consequence
which is likely to fall upon conviction how can it be expected to assign
reasons relevant thereto? No one can be allowed to play hide and seek
with the Court; he cannot suppress the precise purpose for which he
seeks suspension of the conviction and obtain a general order of stay
and then contend that the disqualification has ceased to operate. ***
***
19. That takes us to the question whether the scope of Section 389(1)
of the Code extends to conferring power on the Appellate Court to stay
the operation of the order of conviction. As stated earlier, if the order
of conviction is to result in some disqualification of the type mentioned
in Section 267 of the Companies Act, we see no reason why we should
give a narrow meaning to Section 389(1) of the Code to debar the court
from granting an order to that effect in a fit case. The appeal under
Section 374 is essentially against the order of conviction because
the order of sentence is merely consequential thereto; albeit even the
order of sentence can be independently challenged if it is harsh and
disproportionate to the established guilt. Therefore, when an appeal
is preferred under Section 374 of the Code the appeal is against both
the conviction and sentence and therefore, we see no reason to place
a narrow interpretation on Section 389(1) of the Code not to extend
it to an order of conviction, although that issue in the instant case
AFJAL ANSARI v. STATE OF UP 993
[DIPANKAR DATTA, J.]
recedes to the background because High Courts can exercise inherent
jurisdiction under Section 482 of the Code if the power was not to be
found in Section 389(1) of the Code. We are, therefore, of the opinion
that the Division Bench of the High Court of Bombay was not right in
holding that the Delhi High Court could not have exercised jurisdiction
under Section 482 of the Code if it was confronted with a situation of
there being no other provision in the Code for staying the operation
of the order of conviction. In a fit case if the High Court feels satisfied
that the order of conviction needs to be suspended or stayed so that
the convicted person does not suffer from a certain disqualification
provided for in any other statute, it may exercise the power because
otherwise the damage done cannot be undone; the disqualification
incurred by Section 267 of the Companies Act and given effect to
cannot be undone at a subsequent date if the conviction is set aside by
the Appellate Court. But while granting a stay of (sic or) suspension of
the order of conviction the Court must examine the pros and cons and
if it feels satisfied that a case is made out for grant of such an order, it
may do so and in so doing it may, if it considers it appropriate, impose
such conditions as are considered appropriate to protect the interest of
the shareholders and the business of the company.”
(emphasis supplied)
14. Navjot Singh Sidhu v. State of Punjab8, cited on behalf of the
appellant, had the occasion to deal with an argument that in order to maintain
purity and probity in public bodies, criminalisation of politics has to be
stopped and persons who have been convicted of any offence should not be
allowed to enter Parliament; and that irrespective of quantum of sentence, if
a person is convicted for an offence referred to in sub-section (1) of section
8 where the punishment imposed may only be a fine, a person will incur the
disqualification from the date of conviction which will remain for a period of
6 (six) years, thus evincing the intention of the framers of law that a convict
should not enter the precincts of Parliament or the Legislature of a State. The
contention raised was rejected holding that the RoP Act is a complete code
providing not only the eligibility and qualification for membership of the
8 (2007) 2 SCC 574
994 SUPREME COURT REPORTS [2023] 16 S.C.R.
House of People and the Legislative Assemblies but also for disqualification
on conviction and other matters. Parliament in its wisdom having made a
specific provision for disqualification on conviction by enacting section 8,
it was held that it is not for the Court to abridge or expand the same. Rama
Narang (supra) and Ravikant S. Patil (supra) were referred to, which
recognized the power possessed by the court of appeal to suspend or stay an
order of conviction. Such decisions having also laid down the parameters for
exercise of such power, it was also held that it is not possible to hold, as a
matter of rule, or, to lay down, that in order to prevent any person who has
committed an offence from entering Parliament or the Legislative Assembly
the order of the conviction should not be suspended. It was reminded that
the courts have to interpret the law as it stands and not on considerations
which may be perceived to be morally more correct or ethical.
15. On behalf of the respondent, learned ASG cited Sanjay Dutt v.
State of Maharashtra9 to contend that a mere bar to contest elections would
not be sufficient ground to stay the conviction. The relevant portion of the
decision is excerpted below:
“12. Despite all these favourable circumstances, we do not think that
this is a fit case where conviction and sentence could be suspended so
that the bar under Section 8 (3) of the Representation of People Act,
1951 will not operate against the petitioner. 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 CrPC shall be exercised only under exceptional circumstances.
***
14. In the present case, no such circumstances are in favour of the
petitioner. In view of the serious offence for which he has been
convicted by the Special Judge, we are not inclined to suspend the
conviction and sentence awarded by the Special Judge in the present
case….”
(emphasis supplied)
9 (2009) 5 SCC 787
AFJAL ANSARI v. STATE OF UP 995
[DIPANKAR DATTA, J.]
16. The vires of section 8(4) of the RoP Act came to be challenged in
Lily Thomas v. Union of India10, a decision on which learned ASG placed
heavy reliance. According to him, what flows from the said decision is that
exercise of power to stay a conviction should be limited to very exceptional
cases and the present case does not commend to be such an exceptional
case so as to warrant any stay of conviction recorded against the appellant.
17. Sub-section (4), which was inserted in section 8 of the RoP Act
by an amendment with effect from 15th March, 1989, provided for an
automatic stay of disqualification from membership if a convicted member of
Parliament/Legislative Assembly brought an appeal/application for revision
seeking setting aside of his conviction within three months thereof. This
Court in Lily Thomas (supra) held that Parliament lacked the power to enact
sub-section (4) of section 8 and declared the same ultra vires. It also found
no merit in the submissions advanced on behalf of the respondents that if
a sitting member of Parliament or a Legislative Assembly suffers from a
frivolous conviction by the trial court of the nature referred to in sub-sections
(1), (2) and (3) of section 8, he will be remediless and suffer immense
hardship as he would stand disqualified on account of such conviction in the
absence of sub-section (4). While repelling such submission, Rama Narang
(supra) and Ravikant S. Patil (supra) were referred to and it was held that
in an appropriate case not only could the appellate court in exercise of its
power under section 389(1) of the Cr. PC stay the order of conviction, but
the High Courts in exercise of its inherent jurisdiction under section 482 of
the Cr. PC could also stay the conviction if the power was not to be found
in section 389 thereof.
18. Lok Prahari through General Secretary S.N. Shukla v. Election
Commission of India & Ors. 11 was cited by Dr. Singhvi. There, a society
registered under the Societies Registration Act, 1860 invoked the Public
Interest Litigation jurisdiction of this Court under Article 32 of the
Constitution seeking, inter alia, a declaratory relief that since the law does
not provide for stay of conviction, even in case of stay of conviction by
the appellate court for an offence attracting disqualification under section
10 (2013) 7 SCC 653
11 (2018) 18 SCC 114
996 SUPREME COURT REPORTS [2023] 16 S.C.R.
8 of the RoP Act, any such stay order does not have the effect of wiping
out the disqualification and reviving the membership with retrospective
effect and consequently, the seat of the member concerned is deemed to
have become vacant with effect from the date of conviction in terms of
Articles 101(3)(a) and 190(3)(a) of the Constitution. This Court, having
considered Rama Narang (supra), Lily Thomas (supra), Navjot Singh
Sidhu (supra) and Ravikant S. Patil (supra), expounded the position of
law as follows:
“16. These decisions have settled the position on the effect of an order of an
appellate court staying a conviction pending the appeal. Upon the stay of a
conviction under Section 389 CrPC, the disqualification under Section 8 will
not operate. The decisions in Ravikant S. Patil and Lily Thomas conclude
the issue. Since the decision in Rama Narang, it has been well settled
that the appellate court has the power, in an appropriate case, to stay the
conviction under Section 389 besides suspending the sentence. The power
to stay a conviction is by way of an exception. Before it is exercised, the
appellate court must be made aware of the consequence which will ensue if
the conviction were not to be stayed. Once the conviction has been stayed
by the appellate court, the disqualification under sub-sections (1), (2) and
(3) of Section 8 of the Representation of the People Act, 1951 will not
operate. Under Article 102(1)(e) and Article 191(1)(e), the disqualification
operates by or under any law made by Parliament. Disqualification under
the above provisions of Section 8 follows upon a conviction for one of the
listed offences. Once the conviction has been stayed during the pendency
of an appeal, the disqualification which operates as a consequence of the
conviction cannot take or remain in effect. In view of the consistent statement
of the legal position in Rama Narang and in decisions which followed,
there is no merit in the submission that the power conferred on the appellate
court under Section 389 does not include the power, in an appropriate
case, to stay the conviction. Clearly, the appellate court does possess such
a power. Moreover, it is untenable that the disqualification which ensues
from a conviction will operate despite the appellate court having granted a
stay of the conviction. The authority vested in the appellate court to stay a
conviction ensures that a conviction on untenable or frivolous grounds does
not operate to cause serious prejudice. As the decision in Lily Thomas has
clarified, a stay of the conviction would relieve the individual from suffering
AFJAL ANSARI v. STATE OF UP 997
[DIPANKAR DATTA, J.]
the consequence inter alia of a disqualification relatable to the provisions of
sub-sections (1), (2) and (3) of Section 8.”
(emphasis supplied)
19. The unreported decision in Naranbhai Bhikhabhai Kachchadia
v. State of Gujarat12, relied on by Dr. Singhvi, was rendered on an appeal
where the prayer for stay of conviction was declined by the relevant high
court. The appellant, a sitting member of Parliament, had been convicted of
offences under sections 332, 186 and 143, IPC along with others but acquitted
of the more serious offence under section 3(1) (x) of the Scheduled Castes
and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Looking to
the facts of the case, this Court was of the view that adverse consequences
will certainly follow not only to the appellant but also to his constituents in
case the conviction remains, and the impact thereof would be irreparable.
Considering various factors as delineated in unnumbered paragraph 13,
including the somewhat exceptional consequence of the disqualification
of the appellant from representing his constituents in Parliament for six
years, this Court quashed the prosecution against the appellant only on the
condition that the appellant pays to the victim/complainant Rs.5,00,000/-
within a week.
20. Finally, the recent decision of this Court in Rahul Gandhi v.
Purnesh Ishwarbhai Modi & Anr.13 was placed on behalf of the appellant
wherein this Court observed that section 8(3) of the RoP Act has far-reaching
consequences, as it not only affects the right of the appellant to continue
in public life but also is a detriment to the right of the electorate which has
elected him to represent their constituency.
21. It has been noticed that in Ravikant S. Patil (supra) and Lok
Prahari (supra), this Court had considered the decision in K.C. Sareen
v. CBI14. That was a case where a bank officer having been convicted for
an offence punishable under the Prevention of Corruption Act, 1988 and
sentenced to a year’s imprisonment with fine of Rs.500/-, had carried the
conviction and sentence in appeal whereupon execution of the sentence was
12 Criminal Appeal No. 418/2016 (order dated 29th April, 2016)
13 2023 SCC OnLine SC 929
14 (2001) 6 SCC 584
998 SUPREME COURT REPORTS [2023] 16 S.C.R.
stayed. However, in view of the conviction which remained operative, the
disciplinary authority imposed the punishment of dismissal from service.
The dismissed officer once again moved the relevant high court but without
success. The second order dismissing the prayer for stay of conviction was
challenged before this Court. Dismissing the civil appeal, this Court ruled
that:
“11. The legal position, therefore, is this: though the power to suspend
an order of conviction, apart from the order of sentence, is not alien
to Section 389(1) of the Code, its exercise should be limited to very
exceptional cases. Merely because the convicted person files an
appeal in challenge of the conviction the court should not suspend the
operation of the order of conviction. The court has a duty to look at
all aspects including the ramifications of keeping such conviction in
abeyance. It is in the light of the above legal position that we have to
examine the question as to what should be the position when a public
servant is convicted of an offence under the PC Act. No doubt when the
appellate court admits the appeal filed in challenge of the conviction
and sentence for the offence under the PC Act, the superior court should
normally suspend the sentence of imprisonment until disposal of the
appeal, because refusal thereof would render the very appeal otiose
unless such appeal could be heard soon after the filing of the appeal.
But suspension of conviction of the offence under the PC Act, dehors
the sentence of imprisonment as a sequel thereto, is a different matter.
***
13. The above policy can be acknowledged as necessary for the efficacy
and proper functioning of public offices. If so, the legal position can
be laid down that when conviction is on a corruption charge against
a public servant the appellate court or the revisional court should not
suspend the order of conviction during the pendency of the appeal even
if the sentence of imprisonment is suspended. It would be a sublime
public policy that the convicted public servant is kept under disability
of the conviction in spite of keeping the sentence of imprisonment in
abeyance till the disposal of the appeal or revision.”
(emphasis supplied)
AFJAL ANSARI v. STATE OF UP 999
[DIPANKAR DATTA, J.]
22. In order to understand the manner in which the power under section
389(1) of the Cr. PC could be exercised, reference to the decision of this
Court in State of Maharashtra v. Balakrishna Dattatraya Kumbhar15 would
not be out of place. Faced with a circumstance surrounding the suspension
of conviction of a senior excise officer by the Bombay High Court, this
Court held that the conviction of public servants in corruption cases cannot
be suspended merely because they would otherwise lose their jobs. This is
what was also observed in paragraph 15 of the decision:
“15. Thus, in view of the aforesaid discussion, a clear picture emerges
to the effect that the appellate court in an exceptional case, may put the
conviction in abeyance along with the sentence, but such power must
be exercised with great circumspection and caution, for the purpose
of which, the applicant must satisfy the court as regards the evil that
is likely to befall him, if the said conviction is not suspended. The
court has to consider all the facts as are pleaded by the applicant, in
a judicious manner and examine whether the facts and circumstances
involved in the case are such, that they warrant such a course of action
by it. The court additionally, must record in writing, its reasons for
granting such relief. Relief of staying the order of conviction cannot
be granted only on the ground that an employee may lose his job, if
the same is not done.”
(emphasis supplied)
23. Again, in Shyam Narain Pandey v. State of U.P.16, arising out of
an appeal at the instance of a principal of an institution who was, inter alia,
convicted for murder, this Court stressed on the exceptionality of the power
to suspend the conviction and observed thus:
“11. In the light of the principles stated above, the contention that the
appellant will be deprived of his source of livelihood if the conviction
is not stayed cannot be appreciated. For the appellant, it is a matter
of deprivation of livelihood but he is convicted for deprivation of
life of another person. Until he is otherwise declared innocent in
15 (2012) 12 SCC 384
16 (2014) 8 SCC 909
1000 SUPREME COURT REPORTS [2023] 16 S.C.R.
appeal, the stain stands. The High Court has discussed in detail the
background of the appellant, the nature of the crime, manner in which
it was committed, etc. and has rightly held that it is not a very rare and
exceptional case for staying the conviction.”
24. Bare perusal of the aforementioned decisions reveal how this
Court has differently dealt with approaches made by, inter alia, a Managing
Director of a company, a member of the Legislative Assembly, a member
of Parliament, a film actor intending to join politics, a bank officer, a civil
post holder and a principal of an institution, while they sought for stay of
conviction.
25. It is also noteworthy that notwithstanding Rama Narang (supra)
referring to section 482 of the Cr. PC as the repository of power to stay a
conviction in a case where section 389(1) thereof may not apply, the power
of an “Appellate Court” to stay a conviction pending an appeal against a
judgment and order of conviction and sentence too has been read into section
389(1) by Rama Narang (supra), although the statute on its plain language
does not expressly say so. This, in all probability, is because the inherent
power under section 482 is the exclusive preserve of the high courts and not
any other court exercising appellate power; hence, an “Appellate Court”,
not being a high court, would be denuded of the power to stay a conviction
under section 482 in case such a prayer were made during the pendency of
an appeal before it (the appellate court).
26. It is considered most appropriate, at this stage, to refer to the
decision of the Constitution Bench of this Court in K. Prabhakaran v.
P. Jayarajan17. In a somewhat different context, this Court did have the
occasion to consider section 389, Cr. PC and made a pertinent observation
as to what is permissible thereunder. The said observation reads:
“42. *** A court of appeal is empowered under Section 389 to order
that pending an appeal by a convicted person the execution of the
sentence or order appealed against be suspended and also, if he is in
confinement, that he be released on bail or bond. What is suspended is
17 (2005) 1 SCC 754
AFJAL ANSARI v. STATE OF UP 1001
[DIPANKAR DATTA, J.]
not the conviction or sentence; it is only the execution of the sentence
or order which is suspended. It is suspended and not obliterated. ***”
(emphasis supplied)
27. Although the aforesaid observation in K. Prabhakaran (supra)
correctly captures the essence of section 389, Cr. PC., it appears not to
have been placed before the other Benches of this Court while it rendered
decisions subsequent thereto (some of which have been noted hereinabove).
Although a difference between an ‘order of conviction being stayed’ and
‘execution of the order appealed against being suspended’ in the context
of exercise of jurisdiction by the courts under the Cr. PC is discerned, such
difference was not delineated possibly because the issue before the Court did
not warrant it. In any event, K. Prabhakaran (supra) being a Constitution
Bench decision, the same would bind all Benches of lesser strength and it is
trite that any interpretation of section 389(1), Cr. PC not in line therewith has
to yield to it. At the same time, Rama Narang (supra) without being doubted
having held the field so long and by which the power to stay conviction
under section 389, Cr. PC stands judicially acknowledged, all later decisions
including K. Prabhakaran (supra) must be read as complimentary to it.
28. At this juncture, it would also be of profit to refer to the decision
in Lalsai Khunte v. Nirmal Sinha18 where, while discussing the effect of
stay of conviction as compared to suspension of the order under appeal at
some length, the Bench followed K. Prabhakaran (supra). In that case, the
appellant had been convicted for offences under sections 420 and 468 read
with section 34 of the IPC and sentenced to two years imprisonment by the
trial court’s order dated 9th May, 2002. The appellate court by an order dated
31st May, 2002 suspended the order of the trial court dated 9th May, 2002 and
granted bail to the appellant. Meanwhile, the appellant and the respondent
intended to contest election for the same constituency seat. The Returning
Officer was misled by the appellant, who withheld vital information with
regard to his conviction. In the result, the appellant’s candidature could not
be rejected by the Returning Officer. Both the appellant and the respondent
thereafter contested the election, wherein the former returned victorious.
An election petition was filed by the respondent and it succeeded before the
18 (2007) 9 SCC 330
1002 SUPREME COURT REPORTS [2023] 16 S.C.R.
relevant high court resulting in the appellant’s election to the Legislative
Assembly being set aside. The order of the high court was the subject matter
of the appeal. The sole question falling for decision was whether the order
passed on 31st May, 2002 by the appellate court, whereby the conviction
and sentence of the appellant was suspended, would amount to staying the
conviction or not. This Court, while dismissing the appeal, perused the
appellant’s application under section 389, Cr. PC and found the same to be
a routine application for suspension of sentence without any prayer seeking
stay of conviction. Rama Narang (supra) was read to lay down the law that
section 389(1), Cr. PC empowers the appellate court to stay the conviction
also but that, suspension of the order appealed against would not amount
to staying the conviction. Referring to Ravikant S. Patil (supra), it was
observed that there an application for stay of conviction was specifically
filed specifying the consequences if the conviction was not stayed and that
such fact was taken into consideration while holding in that case that the
conviction was specifically stayed, which was not the case here. Suspension,
the Court held, did not mean the stay of the conviction. It was held that if
the incumbent had been vigilant enough, he could have moved the court
even later on for obtaining the stay of conviction, particularly in view of
the fact that he wanted to contest the election but that was not done. It was
also held that:
“14. As already pointed out above that on 31-5-2002, the appellate court
while granting him the bail only suspended the impugned order dated
9-5-2002. Thus suspension does not amount to temporarily washing
out the conviction. The conviction still remains, only the operation of
the order and the sentence remain suspended that does not amount to
temporary stay of the conviction. A specific order staying conviction
has to be sought.”
(emphasis supplied)
29. In the context of civil proceedings, it is noted that Order XLI
Rule 5 of the Code of Civil Procedure (“CPC”, hereafter) empowers an
appellate court to order stay of execution of the decree appealed from.
The provisions of Order XLI of the CPC apply to appeals from orders in
terms of Rule 2 of Order XLIII thereof. Law is well settled that ‘stay of
operation of an order’ means that the order which has been stayed would not
AFJAL ANSARI v. STATE OF UP 1003
[DIPANKAR DATTA, J.]
be operative from the date the order of stay is passed but it does not mean
that the order, which is stayed, is wiped out from existence. However, it
is in section 389(1), Cr. PC that the expression “execution of the sentence
or the order appealed against be suspended” pending the appeal is found
instead of the legislature having used a simpler expression like “the order
appealed against be stayed”. Had the statute provided so and an order to that
effect were passed, it would be sufficient to stay the conviction as well as the
sentence. However, the legislature has prefaced “the sentence or the order
appealed against” with “execution”, which has the effect of connoting that
only such part of the judgment and order appealed against, which is capable
of being executed, can be suspended under section 389(1), Cr. PC. Though
conviction would be an integral part of the judgment and order carried in an
appeal, but it is not executable in the sense a sentence of imprisonment and/
or fine or any other order fastening obligation on the convict is executable.
While section 389(1) empowers an appellate court to suspend execution of
the sentence or the order appealed against, an order suspending execution of
the order appealed against [according to K. Prabhakaran (supra) and Lalsai
Khunte (supra)] would not amount to a stay of conviction. An order staying
the conviction has to be sought before the concerned court and obtained by the
convict to render any disability including a disqualification as in the present
case, incurred as a result of the conviction, inoperative. In the absence of a
stay of conviction having been sought and an order to that effect having been
passed, an order merely suspending execution of the order appealed against
would be of no use in a matter of the present nature.
30. Be that as it may, the guiding principles that emerge from these
precedents can briefly be summarised as follows:
a. the power to suspend execution of an order and/or to stay a
conviction is traceable to section 389(1), Cr. PC notwithstanding
that the high courts may, in appropriate cases, exercise their
inherent jurisdiction preserved by section 482 of the Cr. PC to
grant a stay of conviction;
b. suspension of execution of an order of conviction or stay of the
conviction — whatever be the prayer made before the Court of
appropriate jurisdiction, the same can be granted depending upon
the facts of each particular case and the courts have a duty to look
1004 SUPREME COURT REPORTS [2023] 16 S.C.R.
at all aspects including the ramifications of keeping the conviction
in abeyance.
c. stay of conviction or suspension of execution of conviction is a
rare occurrence, and in order to avail this exceptional measure, it
must be demonstrated that irreversible consequences and injustice
would otherwise entail which cannot be undone in future;
d. a convict who has appealed against the judgment and order of
conviction and sentence - if he wishes to have the conviction
stayed - has to specifically pray for stay of conviction, since
despite suspension of execution of sentence and the order
appealed against, the conviction remains and such suspension
does not amount to stay of conviction;
e. while seeking a stay of conviction pending appeal, it is imperative
for the appealing convict to expressly bring to the court’s
attention the foreseeable consequences that could ensue if the
conviction were not stayed and failure to elucidate these specific
consequences may lead to the denial of a stay of conviction;
f. once a conviction is either stayed or execution of the conviction is
suspended under the Cr. PC, the conviction becomes inoperative
starting from the date of stay/suspension without, however,
having the effect of obliteration; and
g. one cannot establish a fixed rule that the order of conviction
should not be stayed or its execution suspended as a means
to prevent an individual, who has committed an offence, from
entering Parliament or the Legislative Assembly.
31. The aforesaid principles, though indicative but not exhaustive, do
provide a standard to guide the courts to reach an appropriate conclusion.
Notwithstanding the necessity to judge each case based on its own
peculiar facts, every court seized of a prayer for stay of a conviction or
suspension of execution of a conviction made by a parliamentarian or a
legislator, governed by the RoP Act, may do well to bear in mind certain
other important aspects which I wish to dwell upon briefly in course of
the present deliberation.
AFJAL ANSARI v. STATE OF UP 1005
[DIPANKAR DATTA, J.]
32. The Constitution of India being the supreme law of the nation,
it serves as the ultimate source from which all legislative enactments,
whether central or state, derive their legitimacy. Amidst this vast legislative
landscape, if any one enactment is to be bestowed with the pride of place just
below the Constitution, it is undoubtedly the RoP Act because of the same
being anchored in the concept of the social contract and the rule of law. The
Constitution is a social contract between the government and its citizens,
where the State derives its authority from the consent of the governed.
In this context, the RoP Act stands as a pivotal instrument that translates
the theoretical underpinnings of the social contract into practical reality.
It establishes the legal framework for conducting elections, ensuring that
every citizen has a fair and equal opportunity to exercise his right to vote
and participate in the political process. By regulating the qualifications and
disqualifications of candidates, delimiting constituencies, and overseeing the
electoral machinery, the RoP Act – a complete code in itself – reinforces the
rule of law and upholds the principles of justice, fairness and transparency.
It symbolizes the nexus between the constitutional ideals of inclusive and
participatory democracy and the constitutional concept of “We the People”
by facilitating the active participation of citizens in the democratic process.
The RoP Act, thus, has a pervasive impact on the lives of all citizens,
transcends all political boundaries and intricately weaves itself into the very
fabric of the nation’s democratic body polity.
33. This is more accentuated when considered in the light of the
command of the Constitution, which delineates the criteria for disqualification
of the members of the Parliament and the Legislative Assemblies or the
Legislative Councils of States having such a council.
34. Articles 102 and 191 of the Constitution speak of the circumstances
under which a person will be treated as disqualified from the membership
of either House of Parliament and the Legislative Assemblies/Legislative
Councils of the State, respectively. Certain incidents which could disqualify
a parliamentarian are specified in clauses (a) to (d) of Article 102. Sub-
clause (e) of clause (1) of Article 102, having relevance here, provides
that “a person shall be disqualified for being chosen as, and for being, a
member of either House of Parliament if he is so disqualified by or under
any law made by Parliament”. Sub-clause (e) of clause (1) of Article 191
1006 SUPREME COURT REPORTS [2023] 16 S.C.R.
is similarly worded. The affirmative words used in Articles 102(1)(e) and
191(1)(e), thus, confer absolute and unconditional power on the Parliament
to provide for disqualification of an elected member through legislation.
35. As a reasonable sequitur, the Parliament by exercising this power
has listed out the disqualifications for membership of Parliament and
Legislative Assemblies/Legislative Councils of State as are found in section
8 of the RoP Act. Sub-section (3) of section 8 provides that “(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”. Any
interpretation of section 8 of the RoP Act, therefore, has to be in consonance
with this Constitutional scheme.
36. In this regard, a brief reference to K. Anandan Nambiar, In Re19, a
decision of ancient vintage rendered by a Division Bench of the Madras High
Court, may not be inapt. The Court was dealing with a petition under Article
226 of the Constitution presented by a member of the Legislative Assembly.
Upon his arrest and continuous detention under the Madras Maintenance
of Public Order Act, 1949, the petitioner applied for a mandamus or any
other appropriate writ to declare and enforce his right to attend the sittings
of the Legislative Assembly then in progress, either freely or with such
restrictions as may be reasonably imposed. It was held that a member
of the Legislative Assembly who is detained in prison cannot claim any
superior right to participate in the session of the Assembly. A passage from
the decision, which was delivered at the dawn of the Constitution, gives
an insight to the pillars underground on which the Constitution is founded
and whether placing the petitioner under detention, necessarily resulting in
his absence from assembly sessions, could put in jeopardy any basis of the
Constitution. The relevant passage is quoted below:
“7. We have tried to follow Mr. Kumaramangalam in his underground
exploration of the foundations of the Constitution. But we cannot
see how they could be placed in jeopardy by MLAs under the
lawful preventive detention being (not?) permitted while under such
19 AIR 1952 Madras 117
AFJAL ANSARI v. STATE OF UP 1007
[DIPANKAR DATTA, J.]
detention to attend the sittings of the House. We are able to discern
two main massive and indispensable pillars underground on which
the Constitution is founded. The first pillar is unswerving loyalty by
each and every citizen to the Constitution and to the flag of the Indian
Union, the Constitution to be changed only by constitutional means
eschewing any form of violence. The second pillar we may describe
as honesty, character and integrity in the component organs of the
Constitution, viz., the Legislature, and the Executive and judiciary.
We are called upon to consider the legal position with regard to
all forms of preventive detention, whether for action prejudicial
to the security of the State itself or the maintenance of public
order which threatens to undermine the first pillar or for action
prejudicial to the maintenance of essential services particularly
those affecting the supply of food, such as black marketing and
boarding and cornering operations by which fortunes can be
accumulated at the expense of the suffering poor, which threatens
to undermine the second pillar. If a case should ever arise of a
Member of a Legislative Assembly being preventively detained
for black marketing operations prejudicial to such essential
services, involving as it does social and moral turpitude, really
worse than that of many criminals imprisoned under ordinary law,
can it possibly be said that his being restricted from attending
the House while under such detention in the slightest degree puts
in jeopardy any basis of the Constitution? On the contrary, both
justice and law require that he should be restrained from further
legislative activity and further misuse of his position till the
electorate call upon him to account at the next election. We are
unable to differentiate in law any treatment of cases of preventive
detention. Once a member of a Legislative Assembly is arrested
and lawfully detained, though without actual trial under any
Preventive Detention Act, there can be no doubt that under the
law as it stands, he cannot be permitted to attend the sittings of the
House. A declaration by us that he is entitled to do so, even under
armed escort is entirely out of the question. We however readily
concede the contention of Mr. Kumaramangalam that if a party in
power detains a political opponent or continues his detention with
1008 SUPREME COURT REPORTS [2023] 16 S.C.R.
the mala fide object of stifling opposition and prejudicing the party
to which he belongs in a forthcoming election, there would be an
undermining of the basis of the Constitution, putting in jeopardy
the second pillar to which we adverted. That contention is wholly
irrelevant for the purposes of this petition, which proceeds on the
basis that detention is lawful, bona fide and for proper grounds.
8. *** We see no grounds for any differentiation in treatment as
between a member of a Legislative Assembly detenu and any other
ordinary detenu in the application of these rules….”
(emphasis supplied)
37. A brief survey of the Constituent Assembly Debates would also
aptly lead to the original intention of our lawmakers that culminated
in the enactment of the RoP Act. A perusal of the Debates reveals the
deliberate exclusion of the contingencies under Article 102 (Article 83
of the Draft Constitution), which was left for the new Parliament to
decide. An amendment was moved by Prof. K.T. Shah seeking explicit
disqualification of those members who are convicted of any offence of (a)
treason against the sovereignty, security, or integrity of the State, (b) bribery
and corruption, and (c) any offence involving moral turpitude, and liable to
a maximum punishment of two years’ rigorous imprisonment. Reverting to
the amendment, Mr. H.V. Kamath responded thus20:
“I am sure that this new Parliament under the new Constitution will
frame such rules as will debar such Members from sitting or continuing
in either House of Parliament as have been convicted of any of the
offences which are mentioned by Prof. Shah. The case mentioned in
the amendment is so obvious that nobody who is imbued with the right
public spirit will say that a member convicted of treason, bribery or
corruption or any other offence involving moral turpitude should be
allowed to continue as a Member of either House of Parliament. It
is derogatory not merely to the dignity of the Houses of Parliament
but also derogatory to the good sense and wisdom of the people who
elected them as members of Parliament.”
20 Constituent Assembly Debates, Volume 8 (19th May, 1949)
AFJAL ANSARI v. STATE OF UP 1009
[DIPANKAR DATTA, J.]
38. Such was the vision of the Constituent Assembly. It reflects the
highest commitment to the principles of democracy and the rule of law.
The RoP Act, born out of this Constitutional vision, undoubtedly stands
as a powerful symbol of breaking free from the chains of colonialism and
captures the essence of India’s journey from colonial subjugation to a vibrant,
sovereign democracy. It marked a transformative shift, highlighting that the
nation’s freedom was not just about waving the flag but about empowering
its people to participate actively in shaping their own future and setting up
a robust mechanism of accountability for those who are entrusted with the
responsibility of governance.
39. The decision by the lawmakers in the early years of independent
India choosing to abide and be governed by a robust regulatory framework
like the RoP Act, complete with stringent provisions such as section 8,
was indeed a bold and forward-thinking choice which underlines India’s
commitment to establishing a strong and accountable democratic system
rooted in the rule of law and integrity right from the beginning.
40. In K. Prabhakaran (supra), this Court underlined the aim of
introducing disqualification under section 8(3) of the RoP Act, which is to
deter criminalisation of politics. It was observed:
“54. *** Those who break the law should not make the law.
Generally speaking, the purpose sought to be achieved by enacting
disqualification on conviction for certain offences is to prevent
persons with criminal background from entering into politics, and
the House — a powerful wing of governance. Persons with criminal
background do pollute the process of election as they do not have
many a hold barred and have no reservation from indulging in
criminality to win success at an election.”
(emphasis supplied)
41.In Public Interest Foundation and others v. Union of India and
Another21, another 5-Judge Constitution Bench of this Court expressed
anguish on the criminalisation of politics and observed thus:
21 (2019) 3 SCC 224
1010 SUPREME COURT REPORTS [2023] 16 S.C.R.
“118. *** A time has come that Parliament must make law to ensure
that persons facing serious criminal cases do not enter into the political
stream. It is one thing to take cover under the presumption of innocence
of the accused but it is equally imperative that persons who enter public
life and participate in law making should be above any kind of serious
criminal allegation. It is true that false cases are foisted on prospective
candidates, but the same can be addressed by Parliament through
appropriate legislation. The nation eagerly waits for such legislation,
for the society has a legitimate expectation to be governed by proper
constitutional governance. The voters cry for systematic sustenance
of constitutionalism. The country feels agonised when money and
muscle power become the supreme power. Substantial efforts have to
be undertaken to cleanse the polluted stream of politics by prohibiting
people with criminal antecedents so that they do not even conceive of
the idea of entering into politics. They should be kept at bay.”
(emphasis supplied)
42. In such a context, the unequivocal provision within the RoP Act
that mandates automatic disqualification upon the recording of a conviction
vividly reflects the deliberate legislative intent of the Parliament to keep
away any tainted parliamentarian from continuing in office until, of course,
he secures a stay of the conviction under the governing procedural law. In
the light of the foregoing discussion, it may not be proper for the Courts to
deviate from this straightforward course set up by the Parliament and grant
a stay of the conviction as a matter of routine, thereby paving the way for
the parliamentarian/legislator to represent his constituency till such time
his appeal is decided.
43. One cannot be oblivious that the parliamentarians themselves
are instrumental in enacting the central laws, including the RoP Act. Once
they have laid down a standard under the RoP Act by which an individual
parliamentarian’s actions are to be judged, those standards ought not to
be relaxed simply on the consideration that the electorate would stand
deprived of its representation in the Parliament. In fact, it is expected of
a parliamentarian to meet a higher standard due to the position of trust
and responsibility held by him. The integrity of this process hinges on
the consistent application of the law, ensuring that no one, not even the
AFJAL ANSARI v. STATE OF UP 1011
[DIPANKAR DATTA, J.]
architects of the statute themselves, can alter the measuring stick once it has
been chosen. This steadfast adherence to standards upholds the principles
of justice, accountability, and the rule of law, which are the cornerstones of
a just and democratic society.
44. Looked at through an altogether different lens, what is found
from different central enactments is this. The Chairperson/members of the
National Green Tribunal constituted under the National Green Tribunal Act,
2010 (“the NGT Act”, hereafter), the Chairperson/members of the National
and State Human Rights Commissions constituted under the Protection
of Human Rights Act, 1993 (“the Human Rights Act”, hereafter), and
advocates enrolled in terms of the Advocates Act, 1961, stand the risk of
being removed from public offices held by them or removed from the rolls
of advocates upon conviction being recorded on a criminal charge involving
moral turpitude. The precedents of this Court, to which reference has been
made in course of the foregoing discussion, do lay down the principle that
the likelihood of losing his livelihood (a facet of the Fundamental Right
to Life) by the appealing convict if the conviction were not stayed during
the pendency of the appeal is not a good enough ground for obtaining such
relief. It could be so that upon the conviction being set aside, status quo ante
may be restored, however, this might not be acceptable to those principled
few who put their reputation at a pedestal higher than pecuniary gains and
rue the days of survival with the social stigma attached to such a removal.
Restoring the status quo ante in all cases, therefore, may not be the best
available solution.
45. How can one forget the second proviso to clause (2) of Article
311 of the Constitution ordaining dismissal/removal/reduction in rank of
a person who is a member of a civil service or is a civil post holder if his
conduct has led to his conviction on a criminal charge? He would be facing
the same consequence as noted above.
46. There also exist recruitment rules framed by public authorities
prohibiting consideration of the candidature of any selectee, howsoever
high he might have ranked in the merit list, for an appointment if he is
an accused in a criminal case and has been arrested in connection with
investigation thereof. The fundamental principle of criminal jurisprudence
that an accused is presumed to be innocent unless proven guilty would seem
1012 SUPREME COURT REPORTS [2023] 16 S.C.R.
to be forsaken in such a case. One of the reasons for imposition of such a
restriction is because of the nature of the responsibility the appointee may
have to shoulder. The rationale often hinges on the nature of the position
sought, with a recognition that certain roles demand an intensive and
raised level of scrutiny. A selectee does not have an indefeasible right of
appointment but he does have, to a limited extent, a right of consideration
which itself is a Fundamental Right under Article 16. No employer, in the
ordinary course of business would keep the doors of employment ajar for
such a selectee to enable him to join, subject to his securing an honourable
acquittal in the criminal trial.
47. In our country, laws are in place enacted by the legislature or framed
by the executive in terms of delegated power to prevent any individual
from entering public service if he has criminal antecedents and/or has been
in custody in connection with an investigation any time prior to applying
for a post. While the laws would seem to require that anyone desirous of
entering public service should have a blemish less and untainted profile,
ironically, it is not a rare occurrence that a very few lawmakers create difficult
situations for themselves and seek to be treated in a manner different from
how a common job aspirant seeking to enter public service is treated. It is
lamentable that what is preached by the lawmakers as a body is, at times,
seen not to be put in practice by those erring lawmakers and the general
feeling is that while stringent laws are enacted for the common man to
abide by, it is the influential and the mighty that escape the rigours of law
by misusing their status and position.
48. Considering the approach that the law requires to adopt in respect
of public services/employment, should the approach be different in a
scenario of automatic disqualification as per section 8 of the RoP Act? In a
case of proved guilt resulting in conviction recorded by a competent court,
the presumption of innocence till proved guilty has no place and loses its
sway. The fact that the court is approached by a parliamentarian/legislator,
by itself, should not be viewed with such importance and indispensability
that his status should tilt the scales in his favour. Would it be fair that a
convict, no matter how mighty he is and whatever position he holds, gets
a preferential treatment as compared to an under-trial? Should the courts
go out of the way to stay the conviction or suspend execution of the order
AFJAL ANSARI v. STATE OF UP 1013
[DIPANKAR DATTA, J.]
under appeal when no Fundamental or other Constitutional right of the
convict would be abrogated if a stay were not granted? To our mind, the
answers, as traced through the aforesaid legal and constitutional framework,
would unerringly be in the negative. All the courts of law are bound by the
preambular promise of the Constitution of India to provide equal treatment
to one and all before them if they are similarly placed. Any differentiation
in approach and outcome ought to stand on solid foundation.
49. The incidents on the occurrence of which a member of Parliament
could stand disqualified ‘by the Constitution’ are specified in clauses (a)
to (d) of Article 102(1) whereas a disqualification owing to conviction
recorded by a competent court of law is a measure ‘under the Constitution’
read with the RoP Act. If a disqualification ‘by the Constitution’ or ‘under
the Constitution’ is contrasted with disqualification incurred by a convict to
continue as holders of public offices or the office of a director of a company
‘by a statute’, to wit, the NGT Act, the Human Rights Act or the Companies
Act, or to continue in service either by Article 311 of the Constitution or by
the discipline rules of public institutions, for eg., the one in K.C. Sareen
(supra) and Balakrishna Dattatarya Kumbhar (supra), there can be no
doubt that the standard for staying/suspending the former disqualification
(brought about by or under the Constitution) has to be pegged at a level
higher than the latter disqualification (brought about by the statute/rule) not
only because of the Constitutional scheme but also because of the position
of trust and confidence that a parliamentarian holds.
50. It is perhaps indubitable that the electorate invests not just their
votes but also their expectations, trust and faith in the individuals they elect
to represent them. Any compromise in the integrity of these representatives
can be viewed as a betrayal of this trust. The electorate’s willingness to be
represented by a parliamentarian who has been disqualified by reason of
a conviction on a criminal charge of moral turpitude cannot, therefore, be
presumed. Rather, representation by such parliamentarian could breach the
trust and confidence that was reposed by those who voted him to power.
The trust placed on elected representatives is conditional on their continued
adherence to the principles and laws governing their role. Disqualification
mechanisms serve as a crucial safeguard to rectify any breach of such
adherence. By promptly addressing instances such as the one under
1014 SUPREME COURT REPORTS [2023] 16 S.C.R.
consideration, the democratic system aims to maintain the credibility and
legitimacy of the elected bodies. This process is fundamental to ensure that
the will of the people, expressed through their votes, remains untainted and
reflects a genuine mandate.
51. If a member of the Lok Sabha is convicted and hence stands
disqualified from membership, it is bound to create a vacuum and the
electorate he represents would stand unrepresented. This is not peculiar to
any one member but common to all members suffering conviction if at
all. Creation of a vacuum is envisaged by the Constitution as well as the
RoP Act, with a corresponding obligation to fill up the vacancy caused in
the manner authorised by law. The remedy which was earlier provided to
a disqualified member [sub-section (4) of section 8, RoP Act] no longer
survives. Extraordinary circumstances put forth by an elected member
suffering a disqualification and urging consideration of his case for staying
a conviction must necessarily involve a level of exceptionality which is
beyond the routine. In any case, the lack of representation of the electorate
stemming from the vacancy can always be addressed by organizing an
immediate by-election. Hence, it seems to be debatable whether mere
lack of representation of the electorate should at all be deemed to be an
exceptional reason for stay of a conviction or suspension of execution of
a conviction.
52. A summary of the above discussion is that allowing a convicted
parliamentarian to attend parliamentary proceedings could not only be
derogatory to the dignity of the Parliament but also derogatory to the
good sense and wisdom of the people who elected such parliamentarian.
The robust democratic foundation envisioned in the Constitution finds
its purest manifestation in the RoP Act; the democratic spirit inherent in
the Constitution, therefore, pervades through section 8 of the RoP Act,
giving primacy to nothing but the rule of law. Against this backdrop,
the standard applied to stay the conviction of a parliamentarian ought to
attract a higher standard and the disability stemming from the conviction
cannot be forestalled using the identical standard prescribed for suspending
the execution of the sentence or order appealed against. In view of a
parliamentarian occupying a coveted position of trust and confidence, a
more stringent standard is imperative to suspend the conviction. Even if
AFJAL ANSARI v. STATE OF UP 1015
[DIPANKAR DATTA, J.]
not subject to a heightened standard, the standard must not be lowered
in cases where the requisites laid down by precedents are not followed,
and under no circumstances should it be relaxed solely on account of the
parliamentarian’s elevated status. While the standard for suspending a
conviction is contingent upon the unique facts and circumstances of each
case, it remains unequivocal that regardless of the individual seeking a
stay of conviction, only under exceptional circumstances, as demonstrated
before an “Appellate Court” wielding authority under section 389(1), Cr.
PC, could a stay of conviction be granted but obviously based on reasons
to be recorded by such court in its order.
53. With these prefatory words, I move on to decide the question noted
at the beginning of this judgment.
54. Based on the submissions made by Dr. Singhvi, the impression
sought to be given by the appellant is that his is an exceptional case and grant
of relief, as claimed, is merited because (i) the judgment and order of the
Trial Court recording conviction against him is latently and patently infirm;
(ii) Ghazipur constituency, represented by him in the Lok Sabha for the term
2019-2024, would go unrepresented during the rest of the term; (iii) he would
lose his Constitutional right to contest the forthcoming elections scheduled
in 2024; and (iv) finalising and completing the more than two dozen projects
initiated by him under the MPLAD Scheme would be adversely affected,
so much so that irreversible harm and injustice is inevitable.
55. It is no doubt true that if a judgment of conviction is outrageously
in defiance of reason and logic and appears to be unsustainable without
elaborate arguments being required to be advanced to satisfy the Court in
that behalf, the same could afford a ground for suspending the execution of
the conviction or, in a rare situation, even for staying the conviction. In the
latter case too, however, the infirmities in the judgment of conviction per se
would not be enough to justify a stay. The convict seeking stay is required
not only to make a distinct prayer for stay but he is also obliged, in view of
the long line of precedents, to plead irreversible consequences that could
befall him if the stay were not granted. Such pleaded consequences would
then have to be examined with a view to ascertain whether something very
harmful or untoward or serious would happen, which is irreversible. At the
same time, the court ought to be careful not to express a view which even
1016 SUPREME COURT REPORTS [2023] 16 S.C.R.
directly or indirectly has an effect on the decision-making process at the
time the appeal is decided. However, the present is not such a case where
at this stage it can be contended with the requisite degree of conviction that
the judgment and order dated 29th April, 2023 of the Trial Court, in no case,
would be sustained by the High Court; hence, it is prudent to stay away
from examining whether the judgment recording conviction suffers from
such infirmities so as to warrant a stay of conviction. That is a matter for
the High Court to examine at the first instance and any view, for that matter
even a prima facie, at this stage, could prejudice a party to the appeal. It is,
therefore, left to the High Court to take a call on sustainability or the lack
of it qua the impugned judgment and order.
56. While endeavouring to consider the prayer made before this
Court for stay of conviction, and an altogether new prayer for stay of the
notification issued by the Lok Sabha Secretariat published in the Gazette of
India dated 1st May, 2023, the settled principles of law as well as a proper
understanding of the Constitution and the RoP Act, particularly in the light
of the decisions of this Court as to the right ‘to elect’ as well as the right
‘to be elected’, have to be borne in mind. Such an endeavour would also
necessarily require taking note of the submission of learned ASG that the
grounds now urged before this Court by the appellant of the consequences
that he is likely to suffer if the conviction be not stayed, and the new prayer,
were never urged/made before the High Court.
57. It was pithily stated by this Court in Jyoti Basu v. Debi Ghosal22
that:
“8. A right to elect, fundamental though it is to democracy, is,
anomalously enough, neither a fundamental right nor a common
law right. It is pure and simple, a statutory right. So is the right to be
elected. So is the right to dispute an election. Outside of statute, there
is no right to elect, no right to be elected and no right to dispute an
election. Statutory creations they are, and therefore, subject to statutory
limitation.”
22 (1982) 1 SCC 691
AFJAL ANSARI v. STATE OF UP 1017
[DIPANKAR DATTA, J.]
58. In Pradeep Kumar Sonthalia v. Dhiraj Prasad Sahu23, a 3-Judge
Bench of this Court while approving Jyoti Basu (supra) observed that
what one has to keep in mind while interpreting the phrase appearing in
section 8(3) is that, in cases of this nature, the Court is not dealing with a
Fundamental Right or a common law right.
59. Further, the law is crystal clear that the right to represent a
constituency cannot be construed as a Fundamental or an absolute right.
In Ashish Shelar v. Maharashtra Legislative Assembly24, another 3-Judge
Bench of this Court, dealing with the suspension of certain members of the
Legislative Assembly of Maharashtra, observed thus:
“60….It is true that right to vote and be represented is integral to
our democratic process and it is not an absolute right. Indeed, the
constituency cannot have any right to be represented by a disqualified
or expelled Member.”
60. As the precedents on similar controversies would reveal, this is
not the solitary instance of a (disqualified) member of the Lok Sabha who,
in a bid to escape from the operation of law, is seeking refuge in purported
irreversible consequences to be suffered by his constituents. It is unfortunate
that in a democracy of this magnitude, criminalisation has always been a
ubiquitous parasite affecting democratic principles and ideals. In this light,
this Court has had the occasion to decide matters involving myriad forms
of criminalisation of politics; however, in no manner can the mandate
of the people be pitted against that of a statute simply to nullify such
disqualification. This essence of the appellant’s argument, when juxtaposed
with the purpose of the RoP Act, pales into insignificance being a bizarre
attempt to use the electorate as a shield to maintain incumbency against
clear statutory intent.
61. In a functional democracy, the electorate’s right to have its
elected representative voice its interests before the Parliament/Legislative
Assemblies is a cornerstone of the system. This is why the factor of the
electorate going unrepresented, in case a conviction recorded against an
23 (2021) 6 SCC 523
24 (2022) 12 SCC 273
1018 SUPREME COURT REPORTS [2023] 16 S.C.R.
elected representative is not stayed, assumes some importance. However,
one cannot simply brush aside that those who voted in favour of the appellant
must have reposed full faith and confidence in him, with the thought that their
interests would be best served if he were elected. Out of these electors, there
could be some who may not be willing to have their interests represented
by the appellant who has been convicted, not to speak of the cross-section
of the electorate who voted against him and who, in all probability, would
like to have the voice of such tainted member silenced for all intents and
purposes. In such fact situation, should a convict merely because of his
status as a member of the Lok Sabha/Legislative Assembly, particularly
when only a few months remain for a new Lok Sabha to be formed, be
given special treatment when in ordinary circumstances, such treatment
may not be available to the common citizen? The answer to this question,
I am inclined to think, is a simple “NO” unless, of course, it is shown that
grave injustice and irreversible consequences would follow a refusal by
the competent court to stay the conviction.
62. It has neither been shown from the application filed before the
High Court under section 389(1), Cr. PC that the appellant did specifically
pray for stay of the conviction nor did I find the same therein; hence,
question of the appellant suffering grave injustice and irreversible
consequences would have to take a back seat, considering the absence of
any such specific prayer. This is the first, though not the foremost, ground
for not considering the prayer of the appellant favourably.
63. Moving on, it is paramount that sight is not lost of the fact of
disqualification arising under section 8 of the RoP Act which indeed is the
ramification – a statutory corollary of sorts – of the conviction and sentence
imposed by the Trial Court. By the time the appellant approached the High
Court with the application under section 389(1), Cr. PC sometime in the
second week of May, 2023, his disqualification had taken effect pursuant
to the Notification of the Lok Sabha Secretariat being published in the
Gazette of India dated 1st May, 2023. In view of the observation of the
Constitution Bench in K. Prabhakaran (supra), the High Court having
been approached could have, exercising jurisdiction under section 389(1),
only suspended execution of the conviction or the order appealed against.
Even if the High Court exercised the jurisdiction under section 389(1) or
AFJAL ANSARI v. STATE OF UP 1019
[DIPANKAR DATTA, J.]
its inherent jurisdiction under section 482, Cr. PC to stay the conviction,
the disqualification that had taken effect and notified vide the Gazette
Notification would continue to remain unaffected unless the conviction
itself was stayed. Realising that the appellant did not specifically pray for
stay of conviction before the High Court and that a stay of the notification
is essential, wise counsel must have dawned on the appellant, for, it is
found that a challenge to such a notification has been laid for the first
time in this appeal. It is understandable that despite such notification
having seen the light of the day when the appellant had approached the
High Court, the same could not have been challenged and a stay thereof
obtained in an application under section 389, Cr. PC. In the absence of
any prayer for stay of conviction before the High Court to offset the said
notification from remaining operative, no order could have been passed
by the High Court staying the conviction. Incidentally, it was also not
the prayer of the appellant before the High Court that the conviction be
stayed exercising power under section 482, Cr. PC. If the appellant is
to be allowed to continue as a member of the Lok Sabha without there
being a stay on his conviction, which is also not the prayer here, it would
tantamount to usurpation of an office through membership by the appellant
without having any right thereto.
64. Still further, considering the principles of law laid down in
the precedents noticed above and the factual scenario, one cannot be
unmindful of the fact that the appellant did not demonstrate any exceptional
circumstance before the High Court to warrant a stay of the conviction,
assuming that he did pray so. Despite being obliged, in terms of the dicta in
Rama Narang (supra), Ravikant S. Patil (supra) and Lok Prahari (supra),
the appellant has cared less to be diligent. The present case manifests the
tardy and lethargic attitude of the appellant of having clearly failed to plead
any specific consequences to show that his case falls under an exceptional
category and thereby warrants a stay of the conviction. The four-page
application which the appellant filed before the High Court seeking a stay
of conviction under section 389(1) of the Cr. PC, was accompanied by an
affidavit spread over twelve pages and containing thirty-five paragraphs.
I have read the affidavit in between the lines. More than a couple of
paragraphs are devoted to pointing out the infirmities in the judgment of
the Trial Court leading to the appellant’s conviction, which possibly are
1020 SUPREME COURT REPORTS [2023] 16 S.C.R.
also the grounds of appeal. In only one of the paragraphs did the appellant
plead his disqualification by reason of the notification having been issued
by the Lok Sabha Secretariat and vide the concluding paragraph, the High
Court was implored to suspend the sentence awarded by the Trial Court
together with the conviction.
65. The appellant is an accused in a couple of criminal cases and his
conduct is either under investigation or he is standing trial. Not a single
mitigating factor was shown by the appellant that could lend support to
his case. In such circumstances, can it be concluded that the appellant’s
case qualifies as “exceptional”, thus justifying a stay of the conviction?
66. The present case, as in K.C. Sareen (supra) and Balakrishna
Dattatraya Kumbhar (supra), beckons that stay of conviction of the appellant
in the circumstances as were presented before the High Court as well as
before this Court, could have serious aspersions cast on the integrity of the
democratic institutions. Such a power of stay, as and when exercised by the
courts, would carry with it the obligation of being extremely circumspect
and abundantly cautious necessitating consideration in a judicious manner
of all pleaded facts and circumstances. Notwithstanding that the appellant
is a (disqualified) member of the Lok Sabha and without the essential
pleadings, he cannot legitimately urge that holder of one public office is
different from the holder of another public office like the ones referred to
above and, therefore, he is entitled to any special treatment. If at all one was
to go down that rabbit hole, then the higher burden resting on the shoulders
of elected representatives would likely not serve the appellant’s case. Thus,
inadequate and insufficient pleadings, as assigned by the High Court, is
considered a valid ground for upholding the impugned order.
67. Though the fundamental flaw of absence of pleadings in
the appellant’s case exposes its vulnerability since its very inception,
nonetheless, I am inclined to explore an additional facet flowing from Dr.
Singhvi’s forceful argument that the appellant, being an elected member
of the Lok Sabha, stands on the brink of losing the right to represent his
constituency in the near future, apart from potentially silencing the voice
of the electorate that had previously elected him.
68. As enumerated above, law is well-settled that one needs to plead
irreversible consequences to have the conviction stayed, and by extension,
AFJAL ANSARI v. STATE OF UP 1021
[DIPANKAR DATTA, J.]
get the disqualification lifted. The majority judgment penned by Hon’ble
Surya Kant, J. does not also propose to allow the appellant to participate in
the remaining sessions of the 17th Lok Sabha.
69. Be that as it may, the claim of the appellant that he would be
ineligible to contest the elections to the next Lok Sabha due next year, on
account of the conviction suffered by him, has also failed to impress me.
Adhering to the dictum in Rama Narang (supra) and the other decisions
following it, and at the risk of repetition, it is observed that nowhere in
the application under section 389 did the appellant plead of there being
a real prospect of his projection as a candidate from Ghazipur or any
other constituency by the party to which he owes allegiance or even as an
independent candidate and/or that should his right to contest the election be
scuttled by reason of the conviction, irreversible consequences would ensue.
70. The absence of even a whisper in the pleadings before the High
Court or this Court that there is a real likelihood of the appellant contesting
the elections for the 18th Lok Sabha in 2024 notwithstanding, the oral
submission in this behalf does not advance his case either. According to
Dr. Singhvi, the appellant would stand to lose the right to represent his
constituency on the basis of an untenable conviction and, hence, the same
should be stayed. The right of the appellant to represent a constituency or that
of a constituency to be represented by the appellant is not a Constitutional
right under Article 326 of the Constitution, as faintly submitted on behalf
of the appellant in the written note of arguments. Needless to say, Article
326, which is an integral part of Part XV of the Constitution dealing with
‘Elections’, declares that the election to the Lok Sabha and the Legislative
Assembly shall be on the basis of universal adult suffrage. What the laws for
conducting elections provide is the manner and mode of elections as well
as the conditions and modalities which a prospective candidate is required
to follow and abide by. It appears from the rejoinder filed by the wife of the
appellant to the counter affidavit of the respondent before the High Court that
the appellant is a septuagenarian, suffering from diverse ailments. The health
condition of the appellant having been cited as a ground for grant of bail, it
does cast a doubt on his ability to represent a whole constituency coupled
with the undeniable circumstance that the appellant will only advance in
age with time. Such being the case pleaded before the High Court and even
1022 SUPREME COURT REPORTS [2023] 16 S.C.R.
assuming arguendo that the appellant intends to contest the 2024 election,
the same is too remote a circumstance that could reasonably be covered
by exceptional circumstances warranting a stay of his conviction, far less
putting in jeopardy any basis of the Constitution as held in K. Anandan
Nambiar (supra). Dr. Singhvi’s argument, though attractive at first blush,
needs to be rejected in view of a combined reading of Jyoti Basu (supra),
Pradeep Kumar Sonthalia (supra) and Ashish Shelar (supra) where it has
been unequivocally laid down that the right to elect and to be elected are
statutory rights and not absolute.
71. Heavy reliance placed by Dr. Singhvi on the decision in Rahul
Gandhi (supra) to support the claim of the appellant for staying his conviction
appears to be misplaced. The appellant herein is convicted under section 3(1)
of the Gangsters Act and sentenced to four years’ imprisonment. Section
3(1) thereof prescribes a maximum punishment of ten years and a statutory
minimum of two years. Consequently, upon a conviction under section
3(1) of the Gangsters Act being recorded, bereft of judicial discretion, an
accused is mandatorily subject to a minimum two-year sentence, triggering
an automatic disqualification under section 8 of the RoP Act. In Rahul
Gandhi (supra), while staying the conviction, it was specifically noted by
this Court that the maximum sentence of imprisonment for two years was
imposed by the trial court without any accompanying rationale. In contrast,
in the present case, where the maximum sentence could be ten years and
the appellant was sentenced to four years’ imprisonment, and that too, in
the light of his plea for leniency, the reasoning for granting relief in Rahul
Gandhi (supra) remains distinguishable and categorically fails to offer
any support to the appellant. Insofar as the observation therein regarding
the ramification of sub-section (3) of section 8 of the RoP Act being wide-
ranging and would affect the electorate because of absence of a representative
are concerned, it is noted that the same is an observation in the passing and
does not constitute the ratio decidendi of the decision. On the contrary, the
main reason for grant of relief in Rahul Gandhi (supra), as noted above,
was the absence of reasons to impose the maximum sentence. Therefore,
such a decision lends no assistance to the appellant.
72. The reasoning adopted by the 2-Judge Bench in Naranbhai
Bhikhabhai Kachchadia (supra) resulting in the ultimate relief that was
granted, I am minded to hold, turned more on the facts of the case rather
AFJAL ANSARI v. STATE OF UP 1023
[DIPANKAR DATTA, J.]
than expositing a principle of law worthy of being followed as a precedent.
Thus, the said decision falls short of providing appropriate guidance.
73. What remains is the claim of pending projects under the MPLAD
Scheme.
74. One may suspect that, for no cause or perhaps for no good cause,
the appellant deemed it fit not to make any mention of any project, far less
specific mention, pertaining to the MPLAD Scheme before the High Court.
Interestingly, although Dr. Singhvi raised this point in course of his oral
arguments, the same is conspicuous by its absence in the written note of
arguments. Importantly, attention was not drawn to any provision in the
relevant MPLAD Scheme which is intended to address any contingency
having regard to the appellant’s seat prematurely falling vacant by reason of
his conviction. Absolutely no explanation was proffered by the appellant as
to how any project initiated by him under the MPLAD Scheme would suffer
owing to his absence, especially in the sunset of the life of the present Lok
Sabha. Inter alia, the absence of any such pleadings bears heavy against the
grant of stay of the appellant’s conviction where no sufficient irreversible
consequences to the electorate has been made out at such time when fresh
elections are only but a few moons away.
75. Despite the appellant not having invited attention, I had the
occasion to peruse the ‘MPLAD Scheme Guidelines, 2023’ (“MPLADS
Guidelines”, hereafter) to understand the impact of a premature vacancy
arising on a seat for a particular constituency. Portion of the MPLADS
Guidelines, considered relevant, is reproduced below for convenience:
“10.4.7 In case of sudden death or resignation of a Member of
Parliament, notwithstanding the allocation formula in para 10.4.3
above, the works which may have been duly sanctioned by the
Implementing District Authority as per original eligibility of that
Member of Parliament, shall be completed. The entitlement for new
incoming Members of Parliament would start afresh in accordance
with the said formula.”
76. It is not necessary to closely examine the MPLAD Scheme
or the MPLADS Guidelines, yet, Clause 10.4.7 is worth touching
upon. It stipulates that upon the death or resignation of a member of
1024 SUPREME COURT REPORTS [2023] 16 S.C.R.
Parliament, the works duly sanctioned as per their original eligibility
under the MPLADS Guidelines shall be completed. Clause 10.4.7
does not expressly refer to a vacancy caused by disqualification. It is,
however, presumed that even in a case of disqualification of a member of
Parliament, the projects initiated by him are not abandoned but taken to
its logical end in the manner stipulated in Clause 10.4.7. Such a provision
makes this Court wonder as to the role to be played by a member of
Parliament, especially at such a belated stage in the term, presuming
that the machinery has already started functioning.
77. I am afraid, in case weight towards allowing the present appeal is
lent, it could unwittingly cater to condoning the consequences looming large
before the appellant arising from his conviction, rather than addressing the
purported irreversible consequences faced by the constituency.
78. Indeed, the courts have acknowledged that legislators bear a special
duty towards their constituents, and failure to secure a stay of conviction
may lead to the loss of the 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 the conviction
is not stayed. A parliamentarian/legislator cannot be allowed to obtain a
‘double advantage’ where he implores the Court for a stay of conviction
being a parliamentarian/legislator while simultaneously failing to provide
full disclosure of consequences regardless of what the reasons are, whether
due to inadvertence, negligence, or mistake. Failing to do the same, the law
should be allowed to take its own course.
79. As the court of last resort, it is the bounden duty of this Court
to uphold the rule of law which entails equality before the law and equal
subjection of all classes to the ordinary law of the land. No court, much less
this Court, should feel chained by misplaced sympathy towards assumed or
imagined ramifications on the constituency of the parliamentarian/legislator
who has been convicted.
80. It would not be out of place to quote Dwight D. Eisenhower, the
34th U.S. President, perhaps in times when democracy faced its toughest
test. He said: “the clearest way to show what the rule of law means to us in
AFJAL ANSARI v. STATE OF UP 1025
[DIPANKAR DATTA, J.]
everyday life is to recall what has happened when there is no rule of law”.
This serves as an important reminder. Adoption of the course charted by
Dr. Singhvi that a mere disqualification (without anything more being on
record) should be considered as amounting to “irreversible consequences”,
would inevitably result in this Court sailing in an unnavigable sea of
generalization where, upon disqualification suffered due to the conviction,
a parliamentarian would be entitled to an automatic stay on his conviction
without the requisite pleadings. While recognizing the importance of the
electorate’s representation, it is necessary to maintain a balance between
this right and the enforcement of legal accountability within the democratic
framework.
81. For the reasons aforesaid, I regret my inability to be ad idem with
the majority insofar as grant of relief to the appellant is concerned. I find
no reason to interfere with the impugned judgment and order of the High
Court. The appeal ought to fail and the same is hereby dismissed.
82. The High Court may, however, decide the appeal on its merits at
an early date, subject to its convenience.
Headnotes prepared by: Appeal partly allowed.
Nidhi Jain
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