Raju S/O Narayan Todsam vs The State Of Mha. Thr. Pso Ps ...
2024 Latest Caselaw 23891 Bom

Bombay High Court

Raju S/O Narayan Todsam vs The State Of Mha. Thr. Pso Ps ... on 14 August, 2024

2024:BHC-NAG:9039

                                                                                                                                      269 appa525.23

                                                                                    1

                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                NAGPUR BENCH, NAGPUR

                          CRIMINAL APPLICATION (APPA) NO.525/2023
                                                  IN
                                 CRIMINAL APPEAL NO.9/2023
                                    Raju s/o Narayan Todsam
                                                ..vs..
             The State of Maharashtra, through PSO PS Pandharkawada, Tahsil Kelapur,
                                         District Yavatmal
        ...................................................................................................................................................................................................
        Office Notes, Office Memoranda of Coram,
        appearances, Court orders or directions                                           Court's or Judge's Order
        and Registrar's orders
        ...................................................................................................................................................................................................

                             Shri C.D.Rohankar, Counsel for the Applicant.
                             Shri C.A.Lokhande, Additional Public Prosecutor for the State.

                             CORAM : URMILA JOSHI-PHALKE, J.

CLOSED ON : 08/08/2024 PRONOUNCED ON : 14/08/2024

1. By this application, being moved under Section 389(2)

of the Code of Criminal Procedure, the applicant seeks stay to

judgment and order of conviction dated 12.12.2022 passed by

learned Additional Sessions Judge, Kelapur, district Yavatmal in

Sessions Case No.39/2015 whereby the applicant is convicted for

offences punishable under Sections 143, 147, 148, 435, and 451

read with 149 of the Indian Penal Code and 3 and 4 of the

Prevention of Damage to Public Property Act, 1984.

2. The applicant has also challenged the judgment and

order of sentence by preferring Criminal Appeal No.9/2023.

.....2/-

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3. Heard learned counsel Shri C.D.Rohankar for the

applicant and learned Additional Public Prosecutor Shri

C.A.Lokhande for the State.

4. Learned counsel for the applicant submitted that the

present application for grant of stay to the judgment and order of

conviction impugned is filed on ground that learned Sessions Judge

committed an error while appreciating substantive and documentary

evidence. The applicant was member of 13 th Maharashtra

Legislative Assembly, who represented Arni Assembly Constituency.

He contested the said elections as candidate of "Bhartiya Janta

Party" and he is implicated in the crime due to political rivalry. To

show his involvement in the alleged crime, no identification parade

was held. The entire case of the prosecution is doubtful and learned

Sessions Judge has not appreciated the evidence in its proper

perspective. The applicant wants to remain in public lives and,

therefore, wants to contest elections. If his conviction is not stayed,

he would not be able to contest the elections resulting in

deprivation of his right to contest the elections. Reason for seeking

stay to the conviction arises on account of Section 8(3) of the

Representation of the People Act, 1951 by operation of which he has

incurred disqualification for being chosen as a Member of the

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Legislative Assembly. The applicant was on bail during the trial.

This court has also suspended the substantive jail sentence and

released him on bail.

5. Learned counsel for the applicant submitted that the

applicant was arraigned as accused in connection with Crime

No.336/2013 on allegations that on 29.11.2013, at about 11:00

am, some farmers restrained officials of the APMC from auctioning

of cotton on account of giving less price. Co-accused Nandu Pandit

instigated farmers and the entire work was stopped and there was a

chakka jam on the road. The said fact was informed to the

Chairman of the APMC, who informed the incident to the police.

Accordingly, Assistant Police Inspector Shri Gedam came to the spot.

It was further alleged that when there was a meeting going on in

the office of the APMC premises, at about 12:30 pm, the applicant

and Sudhir Thakre entered into Chamber of the Chairman holding

bottle of petrol and five liters kerosene can in their hands and

obstructed the meeting. The applicant was accompanied by other

accused and 15-20 unknown persons. He poured the petrol on

furniture and set the same on fire. Another co-accused Vicky

Deshattiwar set curtains on fire and caused damage to other

articles. The driver of the applicant broken glasses. Employees of

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the APMC had thrown burnt bed and curtains out of the office.

Though Assistant Police Inspector Shri Gedam attempted to obstruct

them, they manhandled Directors Jitendra Singh and Pramod

Deshattiwar and broken glass on table of the Deputy Chairman.

They also torn the National Flag on the table of the Deputy

Chairman and thrown it on fire. Thus, they caused damage to the

property of the APMC worth of Rs.3,61,000/- and stolen articles

worth of Rs.1,12,000/-. Regarding the said incident, Secretary

Madan Thombare of the APMC lodged a report on the basis of

which the crime was registered under Sections 147, 149, 341, 379,

435, and 436 of the Indian Penal Code and 3 and 4 of the

Prevention of Damage to the Public Property Act and 135 of the

Bombay Police Act so also 2 of the Prevention of Insults to National

Honour Act, 1971 read with 149 of the Indian Penal Code. Learned

counsel further submitted that while considering suspension of the

substantive jail sentence, this court considered the evidence against

the applicant and suspended execution of the jail sentence and

released the applicant on bail. A strong prima facie case is not

made out against the applicant. However, learned Sessions Judge

erroneously, on the basis of contradictory evidence, held the

applicant guilty for offences as the aforesaid. The maximum

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punishment imposed upon the applicant is to undergo rigorous

imprisonment for three years and to pay fine Rs.12000/-, in default,

to undergo rigorous imprisonment for one year for offences

punishable under Sections 4 of the Prevention of Damage to Public

Property Act and 435 read with 149 of the Indian Penal Code. He

submitted that if the conviction imposed upon the applicant is not

stayed, he would lose his right to represent the people. If

submission as to suspension of sentence is accepted, stay to

conviction follows. The right of the applicant is a right to represent,

which would be affected if the conviction is not stayed. He,

therefore, prays that the application be allowed.

6. In support of his contentions, learned counsel for the

applicant placed reliance on following decisions:

1. Raj Babbar vs. State of UP, reported in MANU/UP.0998/2024;

2. Rahul Gandhi vs. Purnesh Ishwarbhai Modi and anr, reported in (2024)2 SCC 595;

3. Mohammad Moquim vs. State of Odisha (Vigilance), reported in MANU/OR/0992/2022, and

4. Harihar Mishra vs. Republic of India, reported in MANU/OR/0484/2010.

.....6/-

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Learned counsel submitted that in all these decisions

supra, prayer for stay to conviction was considered.

7. Per contra, learned Additional Public Prosecutor for the

State submitted that considerations for suspension of substantive jail

sentence are different than for grant of stay to conviction. Only in

rare and exceptional circumstances, conviction is to be stayed.

There is a direct evidence in the nature of eyewitnesses, which

shows involvement of the applicant in the crime committed against

the society. Considering the nature of the offence and involvement

of the applicant which is established on the basis of legal evidence,

no case is made out for grant of stay to the conviction.

8. Having heard learned counsel appearing for respective

parties and perused the entire material on record, issue before this

court is :

Whether the applicant has made out an exceptional

case showing irreversible condition for grant of stay to

the conviction?

9. As per contentions of the applicant, on 29.11.2013, the

First Information Report was lodged at the behest of Secretary

Madan Thombare of the APMC alleging that some farmers were

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269 appa525.23

agitating for giving them higher price for cotton during auction of

cotton on 29.11.2013. During the said agitation, they restrained

officials of the APMC to continue with the auction. Co-accused

Nandu Pandit instigated farmers and also started chakaa jam on the

road. The said incident was informed to the Chairman of the APMC

as well as the police. Assistant Police Inspector Shri Gedam came to

the spot. Subsequently, a meeting was going on at 12:30 pm. At

the relevant time, the applicant, who is original accused No.9, and

co-accused Sudhir Thakre, holding bottle of petrol and five liters

kerosene can in their hands entered into Chamber of the Chairman

of the APMC and put furniture on fire. Co-accused who were along

with him also caused damage to the furniture and other articles.

They also manhandled Directors of the APMC and caused damage

to the Chamber of the Chairman. They broken computers and CPUs

and also put the National Flag on fire and thereby caused damage

worth of Rs.3,61,000/-. For establishing the guilt of the applicant,

the prosecution adduced evidence of as many as ten witnesses and

out of them PW1 Madan Thombare, PW3 Pramod Deshattiwar, and

PW4 Vinayak Bele as well as PW10 API Rakhi Gedam were

eyewitnesses. PW5 Mahesh is also eyewitness. PW2 Prakash acted

as a pancha on spot panchanama and also narrated as to the

.....8/-

269 appa525.23

damage caused to the public property. Perusal of the evidence of

these eyewitnesses shows they have specifically stated role of the

applicant that he poured the kerosene on furniture and set the

furniture on fire. He also entered into the Chamber of the

Chairman and put furniture on fire. Not only the oral evidence but

also the electronic evidence in the nature of videography produced

by the complainant before the investigating officer shows

involvement of the applicant in the said incident causing damage to

the public property. The involvement of the applicant is not only

stated by eyewitnesses but also it is evident from the electronic

evidence. Thus, after appreciation of the evidence adduced, learned

Sessions Judge convicted the applicant and sentenced him as the

aforesaid.

10. First limb of submissions of learned counsel for the

applicant is that at the time of suspension of the substantive jail

sentence, this court has considered these aspects and by observing,

that learned Sessions Judge suspended the execution of the

sentence considering that the punishment is of a limited period,

suspended the sentence.

.....9/-

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11. Insofar as suspension of substantive jail sentence is

concerned, while allowing the application, this court considered

that the sentence imposed is for limited period and also considered

parameters laid down by the Honourable Apex Court for suspension

of sentence.

12. Admittedly, considerations for suspending substantive

jail sentence and granting stay to conviction are different. While

considering applications for stay to conviction, court has to exercise

its jurisdiction by considering that this exercise should be limited to

very exceptional cases. The court has a duty to look at all aspects

including ramification of keeping such conviction in abeyance.

13. Before entering into merits of the case, it is necessary to

reproduce sub-section (3) of Section 8 of the Representation of the

People Act and the same is reproduced below:

"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."

14. In the present case, the applicant, who was elected as

Member of the Maharashtra Legislative Assembly, came to be tried

.....10/-

269 appa525.23

for offences under Sections 143, 147, 148, 379, 435, 436, and 450

of the Indian Penal Code and 3 and 4 of the Prevention of Damage

to the Public Property Act and 135 of the Bombay Police Act so also

2 of the Prevention of Insults to National Honour Act, 1971 read

with 149 of the Indian Penal Code. The sessions case ended in

conviction of the applicant along with other co-accused as the

aforesaid. As per allegations, the applicant was member of unlawful

assembly and in furtherance of their common object of the said

assembly, he caused the damage to the public property lying in the

APMC office and also dishonoured the National Flag. Not only

involvement of the applicant is revealed on the basis of direct

evidence of eyewitnesses, which remained unshattered during the

cross examination, but also the same is substantiated by electronic

evidence produced during the trial. The complainant produced

Video of the incident by Pen-Drive. Thus, eyewitnesses as well as

the electronic evidence sufficiently show involvement of the

applicant in the alleged incident. Admittedly, the applicant being a

Member of the Maharashtra Legislative Assembly was under

obligation to control agitators and honour the National Flag,

however he caused damage to the public property. The evidence

adduced not only shows presence of the applicant in the incident

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269 appa525.23

alleged but also shows his active participation in causing the

damage to the public property. Thus, the involvement of the

applicant in the offence is against the society.

15. In the case of Raj Babbar vs. State of UP supra, as

relied by learned counsel for the applicant, facts show that there

was no direct evidence available against accused and, therefore, the

Allahabad High court considered law laid down by the Honourable

Apex Court and stayed conviction. In paragraph No.18 of the said

decision, it is observed that two star injured witnesses have stated in

their statements that they were not assaulted by the applicant and in

fact the applicant rescued them and get the matter subsided,

however, the trial court appears to have convicted the applicant

under Section 143 of the Indian Penal Code ignoring evidence of the

injured witnesses. Thus, no role was attributed by eyewitnesses

and, therefore, the Allahabad High Court considered the application

for stay.

16. In the case of Rahul Gandhi vs. Purnesh Ishwarbhai

Modi and anr supra, as relied upon by learned counsel for the

applicant, while staying the conviction, the Honourable Apex Court

reiterated principles that suspension of conviction is an exception

.....12/-

269 appa525.23

and not a rule under. While granting stay, facts considered by the

Honourable Apex Court are that the sentence for an offence

punishable under Section 499 of the Indian Penal Code is simple

imprisonment or fine or both. The trial court awarded maximum

sentence of imprisonment of two years. No other reason had been

assigned by the trial court while imposing maximum sentence of

two years. It is to be noted that it is only on account of the

maximum sentence of two years imposed by the trial court. The

provisions of sub-section (3) of Section 8 of the R.P.Act came into

play. Had the sentence been even a day lesser, the provision of sub-

section (3) of Section 8 would not have been attracted. It has

further been held that particularly, when an offence is non-

cognizable, bailable and compoundable, the least the Trial Judge

was expected to do was to give reasons as to why, in the facts and

circumstances, he found it necessary to impose the maximum

sentence of two years. Though the Appellate Court and the High

Court have spent voluminous pages while rejecting the application

for stay of conviction, the reasons for maximum sentence have not

even been touched in their orders.

It has further been observed that taking into

consideration the aforesaid aspects and particularly that no reasons

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269 appa525.23

have been given by the trial court for imposing the maximum

sentence which has the effect of incurring disqualification under

Section 8(3) of the Act, the order of conviction needs to be stayed,

pending hearing of the present appeal.

17. Learned counsel for the applicant placed reliance on

the decision of the Orissa High Court in the case of Harihar Mishra

vs. Republic of India, reported in MANU/OR/0484/2010 supra, as

relied upon by learned counsel for the applicant, which is on

suspension of sentence.

18. As far as facts in the case of Mohammad Moquim vs.

State of Odisha (Vigilance) supra, as relied upon by learned counsel

for the applicant, are not identical to the facts of the present case.

19. In the case of Navjot Singh Sidhu vs. State of Punjab

and anr, reported in (2007)2 SCC 574, the Honourable Apex Court

considered in paragraph No.17 of its judgment that considered that

incident happened all of a sudden without any premeditation.

Deceased was wholly unknown to appellant. There was no motive

for commission of crime. Accused are alleged to have lost temper

and started giving abuses on account of objection raised by

occupants of Maruti car due to obstruction being caused by the

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vehicle of the appellant. Blows by fist are alleged to have been

given and no weapon of any kind has been used.

20. Thus, stay to conviction, as granted in above mentioned

cases, is by considering facts and circumstances in those cases.

21. In the case of Afjal Ansari vs. State of Uttar Pradesh,

reported in (2024)2 SCC 187, the Honourable Apex Court observed

that upon careful consideration of the judgment of the trial court

and the order passed by the High Court, it appears that the

impugned order suggests that there is no cogent evidence to

establish that the appellant has been indulged in anti-social

activities and 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 and also the impugned judgment

indicates the absence of corroborative evidence supporting the

contention that the appellant had been responsible for influencing

witnesses in retracting their statements. Lastly, the appellant therein

was acquitted in predicate offence and stay to the conviction was

granted.

22. While granting stay in the case of Afjal Ansari vs. State

of Uttar Pradesh supra, the Honourable Apex Court reiterated that

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undoubtedly, an order granting stay of conviction should not be the

rule but an exception and should be resorted to in rare cases

depending upon facts of 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.

23. Thus, settled law is that an order of granting stay

should not be rule but an exception.

24. The ground raised by learned counsel for the applicant

is that the applicant's right of representation would affect, in view of

disqualification, in the light of Section 8(3) of the Representation of

the People Act. The purpose of the said Section is to ensure that a

persons with criminal record are not to be elected to public office

and this is legitimate aim in a democracy. Disqualifying a person

who has been convicted of a serious offense from holding public

office is in the interest of maintaining the integrity and credibility of

the democratic process.

25. The Honourable Apex Court, in the case of

K.Prabhakaran and ors vs. P.Jayarajan and ors, reported in

MANU/SC/0025/2005, interpreted purpose and object of Section

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8(3) of the R.P.Act. It is observed that, "sub-Section (3) in its

present form was introduced in the body of the RPA by Act No.1 of

1989 w.e.f. 15.3.1989. The same Act made a few changes in the text

of sub-Section (4) also. The Statement of Objects and Reasons

accompanying Bill No.128 of 1988 stated, inter alia, Section 8 of

the Representation of the People Act, 1951 deals with

disqualification on the ground of conviction for certain offences. It is

proposed to include more offences in this section so as to prevent

persons having criminal record enter into public life". The intention

of Parliament is writ large; it is to widen the arena of Section 8 in

the interest of purity and probity in public life. The purpose of

enacting disqualification under Section 8(3) of the RPA is to prevent

criminalization of politics. 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 holds barred and

have no reservation from indulging into criminality to win success at

an election. Thus, Section 8 seeks to promote freedom and fairness

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at elections, as also law and order being maintained while the

elections are being held. The provision has to be so meaningfully

construed as to effectively prevent the mischief sought to be

prevented. The expression "a person convicted of any offence" has to

be construed as all offences of which a person has been charged and

held guilty at one trial. The applicability of the expression

"sentenced to imprisonment for not less than 2 years" would be

decided by calculating the total term of imprisonment for which the

person has been sentenced.

26. In the case of Manoj Narula vs. Union of India,

reported in (2014)9 SCC 1, the Honourable Apex Court observed

that the scheme of disqualification upon conviction laid down by the

1951 Act clearly upholds the principle that a person who has been

convicted for certain categories of criminal activities is unfit to be a

representative of the people. Criminal activities that result in

disqualification are related to various spheres pertaining to the

interest of the nation, common citizenry interest, communal

harmony, and prevalence of good governance. It is clear that the

1951 Act lays down that the commission of serious criminal

offences renders a person ineligible to contest in elections or

continue as a representative of the people. Such a restriction does

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provide the salutary deterrent necessary to prevent criminal

elements from holding public office thereby preserving the probity

of representative government.

27. In the light of observations in catena of decisions,

purpose of Section 8(3) of the R.P.Act is to be looked into. This

provision certainly deserves purposive interpretation. Just because

an accused is convicted falling under the category of Section 8(3)

and he desires to contest election that by itself is not sufficient to

stay the conviction mechanically.

28. The Honourable Apex Court, in the case of Ravikant

S.Patil vs. Sarvabhouma S.Bagali, reported in (2007)1 SCC 673 ,

observed that, 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

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conviction specifying that 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.

It has further been observed that while recognizing 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.

29. In the case of K.C.Sareen vs. CBI, Chandigarh, reported

in (2001)6 SCC 584, also the Honourable Apex Court observed that

the legal position, therefore, is 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

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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.

30. It is thus clear that powers to stay conviction are to be

exercised with a due care and caution and that too in exceptional

circumstances.

31. In the present case, the applicant has been convicted

for offences punishable under Sections 143, 147, 148, 435, and 451

read with 149 of the Indian Penal Code and 3 and 4 of the

Prevention of Damage to Public Property Act which are against the

society.

32. The duty of the applicant, who was elected to represent

the people, was to control anger of agitators and not to take law in

his hands. His participation in causing damages to the public

property reveals on the basis of the direct evidence. The applicant

came with a preparation carrying bottle containing petrol in his

hand, which shows his intention.

33. Considering the object and purpose of Section 8(3) of

the Representation of the People Act, merely because the applicant

has to represent his constituency, it could not be an exceptional

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circumstance for grant of stay to the conviction. An object of

Legislatures in keeping away convicts from contesting elections is to

be looked into while deciding such applications.

34. In view of the discussion above, the application

deserves to be rejected and the same is rejected.

Application stands disposed of.

(URMILA JOSHI-PHALKE, J.)

!! BrWankhede !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge ...../- Date: 16/08/2024 10:30:09