Bombay High Court
Chanda Ram Shivsharan vs State Of Maharashtra on 9 August, 2023
Bench: Makarand Subhash Karnik
2023:BHC-AS:23105
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.1647 OF 2023
IN
CRIMINAL APPEAL NO.173 OF 2022
Chanda Ram Shivsharan ..Applicant
VS.
The State of Maharashtra ..Respondent
------------
Mr. Ritesh M. Thobde a/w Mr. Sagar S. Tambe a/w Mr.
Changdev S. Shingade for the Applicant.
Ms. Anamika Malhotra, APP for the State.
------------
CORAM : M. S. KARNIK, J.
DATE : AUGUST 9, 2023
ORAL ORDER :
1. Heard learned counsel for the Applicant and learned
APP for the State.
2. The Applicant is the mother in law of deceased Puja.
The Applicant is convicted by the trial Court for the offences
punishable under Sections 498A, 306 and 304B of the
Indian Penal Code and sentenced to suffer imprisonment,
the maximum term being seven years. The Appeal has since
been admitted. The sentence has been suspended by the
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order dated 08.03.2022 passed by this Court and the
Applicant has been enlarged on bail. The present
Application is for stay of the conviction.
3. The Supreme Court in the case of Lok Prahari vs.
Election Commission of India and Others 1 has
considered the scope of the power of the Appellate Court to
stay a conviction. In paragraph Nos.12 to 16 it is held
thus :-
"12. Section 389 of the Code of Criminal Procedure,
1973, empowers the appellate court, pending an appeal
by a convicted person and for reasons to be recorded in
writing to order that the execution of a sentence or
order appealed against, be suspended. In the decision in
Rama Narang v. Ramesh Narang, a Bench of three
Judges of this Court examined the issue as to whether
the Court has the power to suspend a conviction under
Section 389(1). This Court held that an order of
conviction by itself is not capable of execution under the
Code of Criminal Procedure, 1973. But in certain
situations, it can become executable in a limited sense
upon it resulting in a disqualification under other
enactments. Hence, in such a case, it was permissible to
invoke the power under Section 389(1) to stay the
conviction as well. This Court held : (SCC p. 527, para
19)
"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
1 (2018) 18 SCC 114
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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 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."
13. In Navjot Singh Sidhu v. State of Punjab a Bench of
two learned Judges of this Court held that a stay of the
order of conviction by an appellate court is an exception,
to be resorted to in a rare case, after the attention of the
appellate court is drawn to the consequences which may
ensue if the conviction is not stayed. The Court held :
(SCC pp. 581-82, para 6)
"6. The legal position is, therefore, clear that an
appellate court can suspend or grant stay of order
of conviction. But the person seeking stay of
conviction should specifically draw the attention of
the appellate court to the consequences that may
arise if the conviction is not stayed. Unless the
attention of the court is drawn to the specific
consequences that would follow on account of the
conviction, the person convicted cannot obtain an
order of stay of conviction. Further, grant of stay of
conviction can be resorted to in rare cases
depending upon the special facts of the case."
14. The above position was reiterated by a Bench of
three Judges of this Court in Ravikant S. Patil v.
Sarvabhouma S. Bagali, after adverting to the earlier
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decisions on the issue viz. Rama Narang v. Ramesh
Narang, State of T.N. v. A. Jaganathan, K. C. Sareen v.
CBI, B.R. Kapur v. State of T.N. and State of Maharashtra
v. Gajanan. This Court concluded as follows: (Ravikant S.
Patil case, SCC p. 679, para 15)
"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. As 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."
15. In Lily Thomas, it was urged that in the absence of
Section 8(4), a Member of Parliament or of the State
Legislature would be left without a remedy even if the
conviction was "frivolous". Rejecting the submission, this
Court held relying on Ravikant S. Patil : (Lily Thomas
case, SCC p. 673, para 35)
"35. ... In the aforesaid cases, a contention was
raised by the respondents that the appellant was
disqualified from contesting the election to the
Legislative Assembly under sub-section (3) of
Section 8 of the Act as he had been convicted for
an offence punishable under Sections 366 and 376
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of the Penal Code and it was held by the three-
Judge Bench that as the High Court for special
reasons had passed an order staying the
conviction, the disqualification arising out of the
conviction ceased to operate after the stay of
conviction. Therefore, the disqualification under
sub-sections (1), (2) or (3) of Section 8 of the Act
will not operate from the date of order of stay of
conviction passed by the appellate court under
Section 389 of the Code or the High Court under
Section 482 of the Code."
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
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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 the
consequence inter alia of a disqualification relatable to
the provisions of sub-sections (1), (2) and (3) of Section
8."
4. Learned APP relied upon the decision of the Supreme
Court in the case of Shyam Narain Pandey vs. State of
Uttar Pradesh2. In paragraph 11 it is held 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 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."
5. Learned APP further relied upon the decision of the
Supreme Court in the case of Sanjay Dutt vs. State of
Maharashtra3 in support of the contention that when the
Applicant has been convicted for serious offences the
conviction should not be stayed.
2 (2014) 8 SCC 909
3 (2009) 5 SCC 787
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6. My attention is also invited to a decision of this Court
in the case of Manesh Jagannath Kapse vs. State of
Maharashtra4. The relevant portion of which reads thus :-
"4] The application is vehemently opposed by the
learned APP and relying on the Judgment of Their
Lordships of the Apex Court in the case of K.C. Sareen
vs. CBI, she submits that unless the party makes out an
exceptional case, the order of staying the conviction
cannot be passed. She submits that, the Applicant is not
in a position to make out an exceptional case.
5] We have perused the evidence on record. Though
prosecution basically relies on the evidence of injured
witnesses viz. P.W. 8 -Vivek, P.W. 9 - Sunil and P.W. 10 -
Vishal, the perusal of medical evidence of Medical Officer
Dr. Pramod Pathre (P.W.11) would reveal that, injuries
sustained by the aforesaid three witnesses are of simple
nature. Since the State has also filed an appeal against
acquittal under Section 307, matter has come up before
the Division Bench.
6] Perusal of evidence would also reveal that, there
are discrepancies in the evidence of all the above three
injured witnesses. In any case, no specific role is
attributed to the present Applicant. As a matter of fact,
there is a scope to infer in view of evidence of P.W. 8 -
Vivek that the present Applicant has tried to mediate in
the dispute between two warring factions of the same
family. Taking into consideration this aspect of the matter
and further that, there are no criminal antecedents
against the present Applicant, we are inclined to allow the
application.
7] In that view of the matter, application is allowed.
The judgment and Order dated 16/07/2015 of conviction
passed by the learned Additional Sessions Judge, Pune in
Sessions Case No.332 of 2013 qua the present Applicant,
shall stand stayed."
4 Criminal Application No.1301 of 2017 in Criminal Appeal No.730 of 2015 dt. 18.7.2018.
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7. With the assistance of learned counsel for the
Applicant and learned APP I have gone through the
depositions of the material witnesses who deposed against
the Applicant. The marriage of Puja, since deceased, and
the accused No.1-Dattatraya Ram Shivsharan was
solemnized on 29.12.2010. Puja committed suicide on
12.09.2016. The FIR was lodged on 15.08.2017. There
was a delay in lodging the FIR.
8. No doubt, there is now a conviction on record against
the Applicant. However, from the depositions it is seen that
the allegations are mainly against the accused No.1 who is
the son of the Applicant. So far as the Applicant is
concerned, there are general allegations of ill-treatment
made. P.W. No.1, who is the paternal aunt of the deceased
has deposed that the Applicant was providing necessary
articles for the livelihood of the family. She deposed that
the Applicant was leaving the house at about 5.00 a.m. to
attend the work. She was doing her duty till 2.00 p.m. and
thereafter returning home. The husband of the Applicant
was working as a watchman. P.W. No.2, who is the mother
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of deceased Puja deposed that the Applicant was harassing
the deceased on account of failure to give a cupboard and
some household articles in the marriage. These are the only
materials against the Applicant resulting in her conviction.
9. The Applicant, a Class IV employee was working as a
Sweeper with the Health Department of the Solapur
Municipal Corporation at the relevant time. The two grand
minor children are in the custody and residing with the
Applicant. Though the Applicant is convicted, however
considering the nature of the evidence against the
Applicant, the delay in lodging of the FIR which is not
satisfactorily explained, the fact that she is in employment
as a Sweeper who has to provide for her grandchildren, are
factors which have persuaded me to stay the conviction.
This is a rare and an exceptional case where the facts are
such that I am of the opinion that the conviction needs to
be stayed. The Appeal is likely to take a long time to be
heard finally considering the pendency. The Applicant's son
is in custody. It is further material to note that when the
Applicant had visited the office of the Solapur Municipal
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Corporation for reporting for duty, she was informed that
appropriate action would be taken only after the orders
staying the conviction is produced by her.
10. The conviction passed by the learned Additional
Sessions Judge, Solapur in Sessions Case No.221 of 2018
so far as the present Applicant is concerned is stayed.
11. Interim Application stands disposed of.
(M. S. KARNIK, J.)
