Holding

The Supreme Court held that the conviction and sentence could not be suspended under Section 389 CrPC as the circumstances were not exceptional given the seriousness of the offence.

Summary

The petitioner, a well‑known cine artist, was convicted by a Special Judge under Sections 3 and 7 read with Sections 25(1A) and 25(1B) of the Arms Act and sentenced to six years’ rigorous imprisonment. While his appeal against the conviction was pending before the Supreme Court, he sought bail and filed several criminal miscellaneous petitions under Section 389 of the Code of Criminal Procedure, 1973, requesting suspension of the conviction and sentence so that he could contest the Lok Sabha elections, invoking Section 8(3) of the Representation of the People Act, 1951 which disqualifies persons sentenced to two years or more. The Court examined whether the power under Section 389 could be exercised in this case, emphasizing that it is to be invoked only in exceptional circumstances and that the seriousness of the offence precludes such relief. Citing the statutory disqualification and the need to preserve the integrity of the electoral process, the Court declined to suspend the conviction and sentence. Consequently, all the petitions were dismissed.

Issues considered

Whether a conviction and sentence for serious offences under the Arms Act can be suspended under Section 389 CrPC pending appeal to enable the petitioner to contest elections.
Whether the provisions of Section 8(3) of the Representation of the People Act, 1951 bar the exercise of Section 389 CrPC in the present facts.
Whether the petitioner’s fame and lack of prior criminal record constitute exceptional circumstances justifying suspension.

Legislation cited

Arms Act, 1959s. 25(1A), s. 25(1B), s. 3, s. 7
Code of Criminal Procedure, 1973s. 389
Representation of the People Act, 1951s. 8(3), s. 8(4)
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 3(3), s. 5, s. 6

Subjects

suspension of convictionSection 389 CrPCRepresentation of the People Actelectoral disqualificationArms ActTADALok Sabha electionsexceptional circumstances

Judgment

[2009] 5 S.C.R. 188

A SANJAYDUTT I"
\I.
STATE OF MAHARASHTRA TR. CBI, BOMBAY
IN
Crl. M.P. Nos. 4087, 5229, 5230, 5237 & 5314 of 2009.
B (Criminal Appeal No. 1060 of 2007)
MARCH 31, 2009
[K.G. 8ALAKRISHNAN, CJI, P. SATHASIVAM AND R.M.
LODHA, JJ.]
c
CODE OF CRIMINAL PROCEDURE, 1973:
s.389 - Suspension of conviction and sentence pending
appeal - Accused acquitted of offences punishable under
Terrorist and Disruptive Activities (Prevention) Act, 1987 but
D convicted of offences punishable u/ss 3 and 7 r/w ss.25(1A)
,,_'
and 25(1 B) of Arms Act and sentenced to six years RI by
designated court - Pending appeal before Supreme Court,
accused granted bail - Prayer for suspension of conviction
and sentence pending appeal - Held: In view of the serious
E offences for which the accused was convicted, Court declined
to suspend the conviction and the sentence - Keeping in view
the bar uls 8(3) of the 1951 Act, power of court uls 389 CrPC
would be exercised only under exceptional circumstances -
Representation of the People Act, 1951 - s.8(3).
F
The petitioner faced trial for commission of offences
punishable u/ss.3(3), 5 and 6 of Terrorist and Disruptive
'
Activities (Prevention) Act, 1987 and u/ss 3, 7 r/w
ss.25(1A) and 25(18) of Arms Act, 1959. He was found
guilty of offences punishable u/ss 3 and 7 r/w ss. 25(1A)
G
and 25(18) of the Arms Act. and was sentenced to six
years rigorous imprisonment He filed an appeal before
the Supreme Court and pending appeal he was granted '
bail. The petitioner filed Crl.M.P .No.4087 of 2009 u/s 389 '
of the Code of Criminal Procedure, 1973 praying that
H 188
SANJAY DUTI v. STATE OF MAHARASHTRA TR. CBI, 189

' BOMBAY

execution of order of conviction and sentence be also A
suspended pending appeal as he was desirous of
contesting the Lok Sabha elections. The other petitions
were also filed in the matter.

Dismissing the petitions, the Court B
HELD: 1.1. The petitioner has been convicted of
serious offences. Of course, his conviction and sentence
have been challenged before this Court in an appeal. The
petitioner is a well-known cine artist and because of his
contribution to art and cinema he has got large number C
of fans throughout the country and abroad. The
petitioner is not a habitual criminal nor has it been
brought to the notice of the Court that he was involved
in any other criminal case. Despite all these favourable
.-~
circumstances, this is not a fit case where conviction and D
sentence could be suspended so that the bar u/s 8(3) of
the Representation of the People Act, 1951 will not
operate against the petitioner. [Para 6] [193-C-F]
1.2. Law prohibits any person who has been E
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 u/s 389 Cr.P.C. shall be
exercised only under exceptional circumstances. [Para 6] F
[193-G-H]
1.3. In view of the serious offence of which the
petitioner has been convicted by the Special Judge, this
Court is not inclined to suspend the conviction and G
sentence awarded by the Special Judge. [Para 8] [194-D]
y

Navjot Singh Sidhu vs. State of Punjab & Anr. (2007) 2
sec 574, distinguished.
Pmkash Kumar vs. State of Gujarat (2005) 2 SCC 409 H
190 SUPREME COURT REPORTS (2009] 5 S.C.R.

A a?d Rama Narang vs. Ramesh Narang (1995) 2 SCC 513,
cited.

Case Law Reference:
(2001) 2 sec 574 distinguished Para 4
B
(2005) 2 sec 409 cited Para 4
(1995) 2 sec 513 cited Para 4

CRIMINAL APPELLATE JURISDICTION : Crl.M.Nos.
c 4087, 5229, 5230, 5237 & 5314 of 2009 Criminal Appeal No.
1060 of 2007.

IN

From the Judgment 8, Order dated 31.07.2007 of the
D Designated Court Greater Bombay, Maharashtra in Bomb
Blast Case No. 1/1993.

Gopal Subramanium, ASG, Harish N. Salve, Mukul
Rohtagi, Soli J. Sorabjee, K.T.S. Tulsi, Ranjit Kumar, Kanak Raj,
E Mukul Rohtagi, Ankur Chawla, Gaurav Bhatia, Minakshi, Hari
Shankar K. Harshvardhan Jha, Vikas Singh, Ashish Jha, Alok
Saran, R.S. Massy Verma (for T.N. Rao), Manoj Saxena, Rahul
Shukla, Sunil Fernandes, P.V. Yogeswaran, Rajat Jariwal,
Prashant Bhushan, Rohit Kumar Singh, Karan Singh, Hari
F Shankar K. Vikas Singh, Jangra, Satya Kam, Raghenth Basant
(for B.K. Prasad) for the appearing parties.

The Judgment of the Court was delivered by

K.G. BALAKRISHNAN, CJI. 1. The petitioner herein, the
G 117th accused in Special Case No. 1/93 (Bombay Blast Case)
before the Special Judge, TADA (Mumbai), was charged under
various Sections of Terrorist and Disruptive Activities
(Prevention) Act (TADA) such as Section 3(3), Section 5 and
Section 6 and also for the offence under Section 3 and Section
H
SANJAY oun V. STATE OF MAHARASHTRA TR. CBI, 191
- '
, BOMBAY [K.G. BALAKRISHNAN, CJI.]

7 read with Sections 25(1A) and 25(1B) of the Arms Act, 1959. A
The petitioner was found guilty of offences punishable under
Section 3 and Section 7 read with Sections 25(1A) and 25(1B)
of the Arms Act and was sentenced to six years rigorous
imprisonment. The petitioner has filed appeal against his
-_,,_
conviction and sentence and that appeal is pending B
consideration before this Court. Pending consideration of that
appeal, the petitioner was granted bail on 28.2.2007.

2. Crl,M.P. No. 4087 of 2009 has been filed by the
petitioner under Section 389 of the Code of Criminal
Procedure, 1973 (Cr.P.C.) praying that execution of the order
c
of conviction and sentence be suspended pending final hearing
of the appeal. In the petition it is stated that he belongs to a
family which has been in long public service in the country and .
the petitioner is now desirous of contesting election to the
-·-I House of People from Lucknow Parliament Constituency and D
in view of Section 8(3) of the Representation of People Act,
1951, he has incurred disqualification from contesting the
election for becoming a member of either House of Parliament.
Therefore, it is prayed that the conviction and sentence of the
petitioner be suspended to enable him to contest the election. E

3. We have heard Shri Harish N. Salve, learned senior
counsel, appearing for the petitioner and Shri Gopal
Subramanium, learned Additional Solicitor General of India,
.. ; appearing for the Central Bureau of Investigation (CBI) F
opposing the petition. Some third parties have also filed
intervention applications. These parties were given opportunity
to address their arguments even though we have not allowed
any of these intervention applications as it is a Criminal
Miscellaneous Petition.
G
_.., 4. The learned counsel appearing for the petitioner drew
'f
our attention to the extracts of the judgment passed by the
learned Special Judge and elaborately argued that the
petitioner was not part of the criminal conspiracy charged
against him. He has been acquitted by the Special Judge for H
192 SUPREME COURT REPORTS [2009] 5 S.C.R.
( -
A the offence under Sections 3 and 5 of the TADA and no appeal
has been filed against that by the State and the conviction is
only under Sections 3 and 7 read with Sections 25(1A) and
25( 1B) of the Arms Act. It was argued that the conviction itself
for the above offences are based on alleged confession made
B by the petitioner which was not strictly admissible under the law.
It was also contended that the alleged possession of the
weapon by the petitioner was much prior to the criminal
conspiracy allegedly hatched by other accused. The learned
counsel for the petitioner also drew our attention to the fact that
c though under Section 12 of the TADA the Designated Court,
when trying any offence, was competent to try any other offence
with which the accused may, under Cr.P.C., be charged at the
same trial if the offence is connected with such other offence.
It was argued that the finding of the Designated Court would
D show that offence, if any, allegedly found against the petitioner
was not even connected with other offences for which other
accused were charged and, in that event, Section 15 of the
TADA itself would not be attracted and the confession allegedly
made by the petitioner to the police officer was not admissible.
The learned counsel further argued that some of the
E observations made by the Constitution Bench of this Court in
Prakash Kumar vs. State of Gujarat, (2005) 2 SCC 409,
require slight clarification. The learned counsel further pointed
out that the petitioner has got fair chance of appeal filed by him
being allowed and, if the conviction and sentence is not
F suspended, he would be seriously prejudiced. He placed
reliance on the decisions of this Court in Navjot Singh Sidhu
vs. State of Punjab & Anr., (2007) 2 SCC 574, and Rama
Narang vs. Ramesh Narang, (1995) 2 SCC 513.

G 5. The learned Additional Solicitor General appearing for
the CBI contended that the conviction and sentence could be
suspended only in exceptional circumstances and the petitioner
in this case is not entitled to any such relief in view of the
serious crime allegedly committed by him. It was argued that
H under Section 8(3) of the Representation of People Act, 1951,
SANJAY DUTT v. STATE OF MAHARASHTRA TR. CBI, 193

-
_.
'. f BOMBAY [K.G. BALAKRISHNAN, CJI.]
any person who has been convicted of any offence and A
sentenced to imprisonment for not less than two years, except
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. Therefore, it is argued, when there is an express B
•
prohibition of law from contesting the election, the relief prayed
for by the petitioner may not be accepted in the facts and
circumstances of the present case.

6. We have carefully considered the contentions advanced
by the petitioner. The petitioner has been convicted for serious
c
offences. Of course, his conviction and sentence have been
challenged before this Court in an appeal. Though our attention
was draw11 to the various findings recorded by the Special
(
Judge and also the nature of evidence adduced by the
~~
prosecution, we do not propose to consider these facts at this D
stage as it may seriously prejudice either of the parties when
the appeal filed by the petitioner is considered by this Court.
The petitioner is a well-known cine artist and because of his
contribution to art and cinema he has got large number of fans
throughout the country and abroad. His father was also a well- E
_,, known film actor and he was deeply involved in politics. At one
point of time, petitioner's father was Minister in the Union
Cabinet. The petitioner is not a habitual criminal nor it has been
brought to our notice that he had involved in any other criminal
_,
case. Despite all these favourable circumstances, we do not F
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 G
two years from contesting the election and such person shall ·
be disqualified for a further period of six years since his release.
--< In the face of such a provision, the power of the Court under
Section 389 Cr.P.C. shall be exercised only under exceptional
circumstances. H
194 SUPREME COURT REPORTS [2009] 5 S.C.R.
•
A 7. The learned counsel appearing for the petitioner has
placed reliance on the decision of this Court in Navjot Singh
Sidhu's case (supra). But in that case, the petitioner was a
sitting MP and he could have continued as an MP even after
his conviction and sentence in view of Section 8(4) of the
~--
B Representation of People Act, 1951. The petitioner in Navjot
Singh Sidhu's case (supra) resigned and expressed his desire
to contest the election. In fact, that was a case where the trial
court acquitted the petitioner and the High Court, in reversal,
found the petitioner guilty. It was in those circumstances this
c Court granted stay of the order of conviction and sentence in
that case.

8. 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
D suspend the conviction and sentence awarded by the Special "'-
Judge in the present case. We make it clear that we do not
express any opinion on the merit and, if any of the observations
made in this order, even it has remote possibility to prejudice
either parties, we state that the same is only made for the
E purpose of disposal of Cr.M.P. No. 4087 of 2009-application
for suspension/stay of conviction.

9. In the result, Cr.M.P. Nos. 4087/2009, 522912009, 5230/
2009, 5237/2009 and 5314/2009 are dismissed .
F RP. •
Criminal Misc. Petitions dismissed.