Bombay High Court
Sanjay Jaysing Patil vs State Of Maharashtra And Ors on 17 March, 2023
Bench: Bharati Dangre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO.4325 OF 2022
IN
CRIMINAL APPEAL NO.538 OF 2008
Sanjay Jaysing Patil .. Applicant
Versus
The State of Maharashtra & Ors. .. Respondents
...
Mr.Niteen Pradhan with Ms.S.D.Khot, Ms.Tanvi Tapire,
Mr.Danish Patel and Mr.Dhruv Balan for the Applicant.
Ms.A.A.Takalkar, A.P.P. for the State.
Mr.Akshay S. Pansare i/b Mr.Sachindra B. Shetye for the
Respondent No.2.
...
CORAM: BHARATI DANGRE, J.
DATED : 17th MARCH, 2023
P.C:-
1. Interim Application No.4325 of 2022 is taken out by the
applicant, seeking stay to the effect of the order of conviction
and execution of sentence passed by the learned Additional
Sessions Judge, Islampur in Sessions Case No.4 of 1999 (old
Sessions Case No.118 of 1993), by exercising power under
Section 389(1) of Cr.P.C.
2. I have heard the learned counsel Mr.Pradhan for the
applicant and the learned A.P.P. Ms.Takalkar for the State.
M.M.Salgaonkar
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The present applicant alongwith 3 other accused persons
was tried for the offences punishable under Sections 302,
498-A read with Section 34 of IPC.
They faced allegations that on or about 20/03/1993, at
village Nerle, Taluka Walva, in furtherance of their common
intention, they have caused death of Seema, wife of accused
No.2 and sister-in -law of the present applicant and had
subjected her to cruelty for satisfying the illegal demand of
dowry. The applicant faced trial alongwith his mother, father
and brother.
3. On culmination of the trial, the learned Additional
Sessions Judge recorded a clear fnding, that on perusal of the
evidence on record, the prosecution has proved the offence
under Section 302 of IPC only against accused No.1 i.e. the
mother-in-law of the deceased. The said conclusion was arrived
on the basis of the dying declaration of the deceased, which
has been duly recorded, on a certifcate being issued by the
Medical Offcer that the patient is in conscious state and
capable of giving dying declaration.
Dying declaration (Exh.62) specifcally attributed a role
to the mother-in-law and it referred to her husband as well as
the father-in-law as the persons, who attempted to extinguish
the fre and being brought to the hospital by them. The learned
Judge, therefore, recorded that the overt act is attributed to
only accused No.1, who has set her ablaze and, therefore, she
was only held responsible for causing her death. Since, no
overt act was attributed to accused Nos.2 to 4, which include
the present applicant, they stood acquitted of the said charge.
M.M.Salgaonkar
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4. The second charge, which the applicant was made to
face, is under Section 498-A of IPC and in establishing the
same, the learned Judge relied upon the evidence of PW 1, PW
2, PW 13 and PW 15.
In paragraphs 21 to 23, the evidence is exhaustively
dealt with, to establish ill treatment to the deceased,
warranting invocation of Section 498-A of IPC.
In paragraph 24, the learned Judge record that there is
reliable evidence to prove ill treatment at the hands of accused
Nos.1 to 4 and, has thus convicted all the accused under
Section 498-A of IPC and sentenced them to suffer R.I. for two
years and to pay fne of Rs.5,000/- each, in default to suffer R.I.
for six months.
5. When the impugned judgment is perused in the light of
the evidence of PW 1, friend of PW 13-father of the deceased,
PW 2- brother of the deceased, PW 13-the father/informant,
PW 15-step-mother of the deceased and PW 14-friend of the
deceased, there are no specifc accusations levelled against the
present applicant, which would suffciently establish the
charge under Section 498-A of IPC. The evidence is general in
nature and what surfaced on record is that all the accused
persons harassed the deceased and, therefore, the offence
under Section 498-A of IPC has been made out. Even the dying
declaration of the deceased do not implicate the Applicant for
causing any harassment on account of demand of dowry or
otherwise.
M.M.Salgaonkar
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However, it is settled position of law that the allegations
to meet out the offence under Section 498-A, need not be vague
in nature and it is specifcally recorded by the Hon'ble Apex
Court in the case of K. Subba Rao & Ors. Vs. State of
Telangana1, that as far as Section 498-A of IPC is concerned,
merely on the basis of the bald allegations, omni bus in nature,
unless specifc instances of their involvement in the crime is
made out, the conviction cannot be sustained.
6. This is the frame-work, which is to be found in the
impugned judgment, which has convicted the present
applicant for the offence punishable under Section 498-A read
with Section 34 of IPC. On being convicted, the appeal came to
be fled by the applicant alongwith the other accused Nos. 2 to
4, on the ground of the fnding recorded by the Court, is
perverse in nature and the appeal came to be admitted on
19/06/2008.
On the very same date, Criminal Application No.622 of
2008 fled by accused Nos.2 to 4 was also taken up for hearing
and considering the facts and evidence on record, this Court
was pleased to release the applicants on bail, on furnishing
sureties. The argument that the applicants were imposed a
penalty of two years and the fact that the appeal is not likely to
be heard within the said time, weighed with the Court in
releasing the applicants on bail.
7. By the present application, the applicant seeks
suspension of conviction and the application, being moved on
14/12/2022, justify it's grant, by stating that on 09/11/2022,
1 2018 SCC OnLine SC 1080
M.M.Salgaonkar
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the elections of Nerle Gram Panchayat were declared and the
applicant was desirous of contesting the said election.
However, apprehending that the conviction imposed in
Sessions Case No.4 of 1999, would create an impediment, he
sought suspension of conviction by pleading that grave and
irreparable loss will be caused to him, if the conviction is not
stayed, as he would lose an opportunity to contest the Gram
Panchayat election, for which the voting was to be held on
18/12/2022 and this loss cannot be compensated in terms of
money. Merits of the matter is also pressed into service to
justify the prayer.
8. The present application remained pending and in the
meantime, the applicant contested the election of Gram
Panchayat Nerle and he is declared to be elected and presently,
he is holding the post of 'Member' of the Gram Panchayat.
It is informed by Mr.Pradhan, the learned counsel for the
applicant that, no-objection was raised before the Returning
Offcer in respect of his conviction and he was permitted to
contest the election and, in fact, has also won the seat by a
democratic process, as the people in village have chosen him to
be their representative. However, now the rival contender has
called in question the election and sought disqualifcation of
the applicant in the wake of the conviction of the applicant in
the criminal case, by fling an Election Petition.
9. The learned counsel Mr.Pradhan would rely on the
decision of the Hon'ble Apex Court in the case of Rama Narang
M.M.Salgaonkar
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Vs. Ramesh Narang2, wherein the Hon'ble Apex Court
specifcally deal with the power under Section 389(1) as
regards the stay of the conviction. He would also place
reliance upon the decision of the Apex Court in the case of
Navjot Singh Sidhu Vs. State of Punjab & Anr.3, wherein the
proposition has been laid down to the effect that the Appellate
court can suspend order of conviction, when the convict
specifcally shows the consequences that may follow, if the
order is not suspended or stayed.
Being conscious of the position of law that the power to
suspend the conviction can be resorted to in the rare cases,
depending upon the peculiar facts of the case, learned counsel
Mr.Pradhan would submit that this is an exceptional case.
10. The learned A.P.P., Ms.Takalkar would strongly oppose
the application by placing reliance upon the decision of the
Apex Court in the case of K.C.Sareen Vs. CBI4, where the Apex
Court has propounded that the power to suspend the
conviction, shall be exercised only in extraordinary
circumstances, when a case is made out to that effect.
However, the learned A.P.P., on marshaling of evidence of
the evidence of the witnesses and on merits, concede to the
submission of Mr.Pradhan to the effect that there are no
specifc accusations, which have surfaced through the
witnesses during the cross-examination, so as to suffciently
establish the guilt of the applicant under Section 498-A, as the
allegations are vague and general in nature.
2 (1995) 2 SCC 513
3 (2007) 2 SCC 574,
4 (2001) 6 SCC 584
M.M.Salgaonkar
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11. Section 389 of the Code of Criminal Procedure, empower
the Appellate Court, during the pendency of any appeal by any
convicted person, to suspend the execution of the sentence or
order appealed against, by recording the reasons in writing
and the Court may, if the Appellant is in confnement, direct
his release on bail, or on his own bond.
It has been consistently held through various
authoritative pronouncements, that the power to suspend
conviction shall be exercised with great circumspection and
caution and it's exercise shall be justifed only upon the
applicant bringing to the notice of the Court any adverse
circumstances or disqualifcation likely to be suffered by him,
in case the conviction is not suspended. The exercise of the
power shall also demand, establishing of the damage likely to
be caused, to the Applicant, on account of non-suspension of
the conviction.
The catena of decisions by the highest Court has
categorised the offences and specially in case of a person, who
is convicted for an offence under the Prevention of Corruption
Act, 1988, has repeatedly taken a view that keeping in view
the expected standard of administration, conviction on charge
of corruption has to be viewed seriously, and unless conviction
is annulled, the employer cannot be compelled to take the
employee back in service.
12. Dealing with the exercise of power in case of an
application, who was desirous of contesting an election, but in
view of the provision of the Representation of the People Act,
M.M.Salgaonkar
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1951, he incurred a disqualifcation and, therefore, when the
suspension of the conviction and sentence was prayed for
pending the fnal hearing of the Appeal in the case of Sanjay
Dutt Vs. State of Maharashtra5, the Apex Court held that the
petitioner was convicted for serious offences i.e. under
Sections 3 and 6 read with Section 25(1-A) and 25(1-B) of the
Arms Act, 1959 and sentenced to suffer six years R.I., merely
on the ground that he was a cine artist and not a habitual
offender not involved in criminal case, it was not held to be a ft
case, where the conviction and sentence can be suspended, so
that bar under Section 8(3) of the Representation of the
People Act shall not operate against the petitioner.
However, in the case of Navjot Singh Sidhu (supra),
while dealing with the case of the Appellant, who was tried for
the offence under Sections 302 and 323 of IPC and who was
acquitted by the Sessions Court, but the High Court reversing
the said acquittal and convicting him under Section 304 Part II
of IPC, dealt with the embargo created under Section 8(3) of
the Representation of the People Act, 1951, considered the
issue whether the case is made to suspend the execution of
sentence and for grant of bail, and gainfully reproduced the
observation of Three-Judge Bench in the case of Rama Narang
(supra), to the following effect :-
"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 disqualifcation 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 ft
5 (2009) 5 SCC 787
M.M.Salgaonkar
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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. After referring to it's earlier decision, Their Lordships
propounded the following position of law.:-
"5. The aforesaid view has recently been reiterated and
followed by another three-Judge Bench in Ravikant S. Patil v.
Sarvabhouma S. Bagali. After referring to the decisions on
the issue viz. 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 (SCC p. 681, para 16.5)
"16.5. All these decisions, while recognising the power to stay
conviction, have cautioned and clarifed that such power should
be exercised only in exceptional circumstances where failure to
stay the conviction, would lead to injustice and irreversible
consequences."
The Court also observed: (Ravikant S. Patil case, SCC p. 679,
para 15)
"15(11). It deserves to be clarifed 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."
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
specifcally draw the attention of the appellate court to the
M.M.Salgaonkar
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consequences that may arise if the conviction is not stayed.
Unless the attention of the court is drawn to the specifc
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. In the wake of the aforesaid observation, when the
Appellant sought stay or suspension of conviction passed
against him by the High Court on the ground that he was
sitting Member of Parliament on the date of conviction and
though he would not have incurred any disqualifcation and
could have continued to remain as a Member of the
Parliament, by fling an appeal within three months, but in
order to set high standard, he resigned from the Membership
of Lok Sabha, recording that he is now seeking a fresh
mandate from the electorate and wants to contest the election
for membership of the Lok Sabha, which is due to take place
shortly, the application fled by him was considered and came
to be allowed by referring to the evidence on record and by
recording that the Appellant cannot be held guilty under
Section 304 Part II of IPC.
15. The position of law thus stand clarifed and Mr.Pradhan
has rightly attempted to draw the beneft of the proposition of
law laid down in the case of Rama Narang (supra), where
Their Lordships recorded that there is no reason to place a
narrow interpretation on Section 389(1) of the Code and not
to extend it to an order of conviction.
M.M.Salgaonkar
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16. The Division Bench of this Court in the case of Laxman
Malhari Sable Vs. State of Maharashtra6, by relying upon
Rama Narang (supra), has extended the beneft of the power
vested in sub-section (1) of Section 389, by recording as
under :-
"9. We have considered the above mentioned three judgments
and in our view the Apex Court has emphasized the question
of establishing as to whether if the conviction and sentence
were not suspended, the damage that would be caused would
not be undone if ultimately the petitioner's appeal was
allowed. This is not a case of trifing claim of stipendary
allowance as in Jaganathan's case (supra). On the question of
the power of the Court to grant stay of the judgment and order
of conviction and sentence, the matter has been ultimately
placed beyond any controversy by the Apex Court in para 19
of its judgment in Rama Narang's case (supra). Similar view
has been expressed by the Andhra Pradesh High Court in
para 14 of its judgment in Sundararamireddi's case (supra).
There is nothing in the judgment in Jaganathan's case which
militates against the view expressed by the Apex Court in
Rama Narang's case holding that the High Court has such
power either under section 389 or section 482 of the Code.
10.Coming to the facts of the present case, we have already
indicated the unfortunate circumstances leading to the
incident where the deceased picked up his revolver and fred
at the petitioner and then at the petitioner's son. Prima facie
it appears to us that this was undoubtedly a case of the
petitioner acting in exercise of his right of private defence.
Having admitted the appeal, we granted him bail...."
17. From the proposition which would be culled out from the
aforesaid authoritative pronouncement, there can be no doubt
that the Appellate Court is conferred with the power to
exercise the power of suspension of conviction only in
exceptional circumstances and question that arise before me
is, whether the present case makes out an exception so that
6 1997(2) Mh.L.J
M.M.Salgaonkar
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the power of suspension of conviction can be exercised by me
in the iven facts and circumstances.
As far as the merits of the case are concerned, it can be
considered at the time, when the appeal is heard, but prima
facie, I am of the view that the allegations levelled against the
applicant for conviction under Section 498-A falls short of the
requirement of specifc charge of harassment, being
established through cogent and reliable evidence.
The fact that the applicant was 20 years old at the time
when he accused of the aforesaid charge and though the
appeal has been admitted in the year 2008, it has not yet come
up for hearing and is pending on the fle of this Court , itself
justify that he should move ahead and progress further in the
life, if at all an opportunity is available to him, but for his
conviction under the impugned judgment, he is causing great
hardship. If he would have been acquitted of the charges, he
could have availed many opportunities in life, as any other
citizen of the country. However, he have been deprived of the
same due to pendency of the appeal.
18. In these circumstances, prima facie, recording that the
appeal involve a substantial point of law, both on law and facts,
future of the Applicant cannot be put at stake on the basis of
the said conviction.
A case is made out for exercise of power under Section
389(1) of Cr.P.C. and, since, now the Applicant has already
contested the election and is holding the post of 'Member' in Gram
M.M.Salgaonkar
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Panchayat Nerle, I deem it appropriate to grant the application
in terms of prayer clause (a), which reads thus :-
"(a) Pending the hearing and fnal disposal of the
Criminal Appeal No.538 of 2008, the execution, operation and
effect of the order of conviction and consequent execution of
sentence passed by the learned Additional Sessions Judge,
Islampur, Sangli, under Sessions Case No.4 of 1999 (old
Sessions Case No.118 of 1993 in so far as the
Applicant/Original Accused No.4 may kindly be suspended by
invoking powers under Section 389(1) of the Code of Criminal
Procedure."
19. Needless to state that the effect of the aforesaid order
shall operate from the date on which the application is fled.
( SMT. BHARATI DANGRE, J.)
M.M.Salgaonkar
