Daya Nand Chandela vs State
2020 Latest Caselaw 134 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                               Judgment reserved on: 24.12.2019.
                            Judgment pronounced on: 10.01.2020.

+    Crl. Appeal No. 835/2010

     DAYA NAND CHANDELA                          ..... Appellant.
                              Through:           Mr. N. Hariharan, Senior
                                                 Advocate with Mr. Varun
                                                 Deswel, Mr. Prateek
                                                 Bhalla, Ms. Pooja Soni,
                                                 Mr. Sharang Dhulia,
                                                 Mr. Govind Venugopal,
                                                 Mr. Vaibha Sharma
                                                 & Mr. Manu Prabhakar,
                                                 Advocates.
                              versus
     STATE                                       ..... Respondent
                              Through:-          Mr. G.M. Faroqui,
                                                 APP for State with
                                                 SI Ankur Onkar.
     CORAM:
     HON'BLE MR. JUSTICE BRIJESH SETHI

                              JUDGMENT

BRIJESH SETHI, J.

Crl. Misc. (Appl.) No. 10588 & 10590/2019

1. Vide this order, I shall dispose of two applications

filed by the appellant i.e. first application under Section

389(1) of CrPC read with Section 482 CrPC for

suspension/stay of order of conviction and another one

under Section 482 CrPC for seeking permission for

contesting the forthcoming elections in the main petition

i.e. Crl. Appeal No. 835/2010 which is pending

adjudication.

2. The appellant was convicted by the Trial Court

vide the impugned judgment dated 03.06.2010 under

Sections 452/34 IPC and under Section 307/34 IPC. He

was sentenced to undergo three years Rigorous

Imprisonment (RI) for the offence punishable under

Section 452/34 IPC along with fine of Rs. 10,000/- He

was also sentenced to undergo three years R.I. for the

offence punishable under Section 307/34 IPC along with

fine of Rs. 50,000/- Both the sentences were to run

concurrently. The appeal was admitted on 21.07.2010 and

the sentence was suspended during the pendency of the

appeal.

3. The appellant had earlier also filed an application

for suspension/ stay of conviction vide Crl. M.A No.

19131/2014 which was, however, dismissed by this Court

vide order dated 15.1.2015. The appellant is seeking

suspension of the conviction on the ground that the

appellant enjoys a high reputation in the political sphere.

He was elected Councilor in the year 1997 and thereafter

in 2002. He was, thereafter, elected as a Member of the

Legislative Assembly (M.LA.) in the year 2003 and was

further elected as M.L.A in the year 2008.

4. Ld. Sr. counsel has submitted that because of the

order of conviction, the appellant has suffered

disqualification and he cannot contest the upcoming

elections in Delhi in view of bar imposed by Section 8 (3)

of the Representation of the People Act, 1951.

5. Ld. Sr. Counsel for the appellant further submitted

that the forthcoming election of Delhi Assembly is due in

February 2020. No case is registered against the appellant

after the alleged incident of 11.12.2003. Appellant has

deep roots in the society and he belongs to a respectable

family. He has been falsely implicated in the present case

on account of political rivalry by the followers of the

defeated candidate. The appellant is seeking

suspension/stay of conviction as he is unable to contest

election since 2013 due to the order of conviction and

failure to stay conviction will lead to injustice and

irreparable consequences. It is further submitted that the

impugned judgment and order is not sustainable in the

eyes of law as the same are based on surmises and

conjectures.

6. Ld. Sr. Counsel has further prayed for suspension

of sentence on the ground that there are inherent

inconsistencies and glaring contradictions in the

prosecution evidence for which the benefit of doubt ought

to have been given to the appellant. He has further

submitted that entire prosecution case is based on the

testimony of PW-1 to PW-4, who belong to one family

and are inimical towards the appellant and other accused

persons. There are material and serious contradictions in

medical & ocular evidence completely belying the ocular

version and demolishing the prosecution case.

7. Ld. Sr. Counsel has further submitted that Ld.

Judge has failed to appreciate the fact that ingredients of

the offences charged i.e. of 452 & 307 IPC have not been

proved on record. Ld. Trial Court has also failed to

appreciate that appellant Daya Nand Chandela was not

present at the scene of incident and was at MCD Zonal

Office, Rajouri Garden at the time of incident. Police has

recorded the statements of number of witnesses

supporting this fact including that of SHO and Senior

Officers of MCD and has also examined and seized

record of Mobile No. 9818822281 which was used by the

appellant. According to Ld. Counsel, statements of the

witnesses and mobile record has proved the fact that

appellant was not present at the scene of incident and was

at MCD Zonal Office, Rajouri Garden at the time of

incident. Ld. Sr. Counsel has further argued that it has

come in the evidence of PW-1 Ravinder that he fought

election against accused/ appellant. The appellant had

won the election of MLA and after that they were not

having good relations with the accused persons.

8. Ld. Sr. Counsel has next argued that no weapon of

offence has been recovered at the instance of appellant or

any other accused. Ld. Trial Court has failed to appreciate

the fact that that prosecution was not able to bring home

the guilt of the appellant and an important circumstance

i.e. site plan of the place of occurrence has not been

proved on record. Ld. Trial Court has also not considered

the defence evidence which was probable and reasonable.

It has also not considered the cross-examination of the

witnesses and has only relied upon the examination-in-

chief and has failed to appreciate the fact that appellant

had informed the SHO regarding the incident from

Rajouri Garden. Ld. Trial Court has even failed to

consider the fact that prosecution witnesses have

themselves proved on record the plea of alibi of the

appellant that he was in Rajouri Garden and was, thus, not

present at the spot at village Khyala at the time of

incident.

9. Ld. Sr. Counsel has further argued that Ld. Trial

Court has not properly appreciated the evidence of DW-6,

Shri R.K. Singh, Nodal Officer of Airtel regarding the

call details which shows the location of mobile of

appellant at Rajouri Garden. Ld. Trial Court has also

failed to appreciate the fact that in his testimony PW1 has

deposed that he was given a sword blow by appellant but

no sharp injury has been found on his person. Ld. Trial

Court has further failed to appreciate that there were

major contradictions in the testimony of the witnesses as

well as in medical and ocular evidence as PW-4, has

stated in his evidence that appellant had assaulted Sudesh

Chandela with sword and he had sustained 27 injuries

whereas MLC of Sudesh Chandela shows that he had

received only one cut injury on his hand. It is, thus,

submitted that Ld. Trial Court has committed grave error

by convicting the accused/ appellant and further imposing

sentence on appellant. It is argued that prima facie it is

proved on record that accused/ appellant has been falsely

implicated in this case. It is, therefore, prayed that

conviction of the appellant be suspended and he allowed

to contest the forthcoming elections.

10. Ld. APP for the State has opposed the applications

on the ground that Ld. Trial Court has rightly convicted

the appellant and appreciated the evidence in detail. There

are no grounds at this stage to come to the conclusion that

appellant is innocent and appeal is going to result in

acquittal only. Evidence appearing on record has clearly

proved on record the guilt of the appellant and minor

contradictions and inconsistencies need not be taken into

consideration for the reason that these generally occur due

to lapse of memory because of time gap between the date

of incident and date of recording of statement of

witnesses. Moreover, these contradictions which are

minor in nature do not go to the root of the matter and

therefore, no grounds for suspension of the conviction are

made out and the applications be dismissed in the interest

of justice.

11. I have considered the rival submissions. Perusal of

record reveals that the appellant had moved a similar

application bearing no. CRL. M.A. No. 19131/2014 for

suspension of conviction so that he may contest the

election in the year 2015 but the same was dismissed by

the Co-ordinate Bench of this Court vide a detailed

judgment dated 15.01.2015 and conviction of the

appellant was not suspended and, thus, he was not

allowed to contest the election. However, the Ld. Sr.

counsel for the appellant has not referred to or made any

submission on the earlier judgment dt. 15.01.2015 during

the course of arguments and has, thus, not given any

reasons as to why the earlier judgment passed by this

Court should be overlooked or modified or some new

facts have emerged which warrant modification of the

said order. This Court has, however, itself gone through

the said judgment dated. 15.01.2015 which is a very

detailed and reasoned one and it will also be discussed in

the later part of this judgment.

12. Ld. Counsel for the appellant has mainly relied

upon the judgment titled "Navjot Singh Sidhu v. State

of Punjab and Anr., (2007) 2 SCC 574". Perusal of the

said judgment reveals that Hon‟ble Supreme Court in the

said case has categorically observed 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 special facts

of a case. In Navjot Singh Sidhu's case(supra), the

appellant had resigned from the membership of Lok

Sabha upon his conviction. Even though by preferring an

appeal, he would not have incurred any disqualification

by virtue of Section 8(4) of the Representation of People

Act, 1951. (though this provision was later on struck

down by Hon‟ble Supreme Court in "Lily Thomas v.

Union of India, (2013) 7 SCC 653"). However, the

appellant had resigned to set high standards in public life.

Since he intended to contest the elections for membership

of the Lok Sabha, which was due to take place shortly, on

account of his resignation, he had sought suspension of

his conviction. The Hon‟ble Supreme Court had

suspended his conviction and held as under:-

The incident took place on 27.12.1988. It has no co-relation with the public life of the appellant which he entered much later in 2004 when he was elected as a Member of the Parliament. It is not a case where he took advantage of his position as M.P. in commission of the crime. As already stated, it was not necessary for the appellant to have resigned from the membership of the Parliament as he could in law continue as M.P. by merely filing an appeal within a period of 3 months and had he adopted such a course he could have easily avoided incurring any disqualification at least till the decision of the appeal. However, he has chosen to adopt a moral path and has set high standards in public life by resigning from his seat and in seeking to get a fresh mandate from the people. In the event prayer made by the appellant is not granted he would suffer irreparable injury as he would not be able to contest for the seat which he held and has fallen vacant only on account of his voluntary resignation which he did on purely moral grounds. Having regard to the entire facts and circumstances mentioned above we are of the opinion that it is a fit case where the order of conviction passed by the High Court deserves to be suspended.

13. Let me now advert to present case to find out

whether grounds for suspension of conviction are made

out by the appellant in view of the law laid down by the

Hon‟ble Supreme Court in Navjot Singh Sidhu's

case(supra). The appellant has been convicted for the

offence u/s. 452/307/34 IPC. As discussed earlier, the

appellant had earlier also moved a similar application for

suspension of conviction so as to allow him to contest the

election. However, the same was dismissed by the Co-

ordinate Bench of this Court vide a detailed order dated

15.01.2015. In the opinion of this Court, there is no

change in the circumstances thereafter except that now

the appellant intends to contest the election for the post of

MLA to be held in February, 2020 whereas earlier it was

for the election in the year 2015. All the contentions

raised by the Ld. Sr. Counsel before this Court were

raised and have been discussed in detail by the Co-

ordinate Bench of this Court. There are no reasons to

differ from those findings and moreover no arguments

have been advanced by Ld. Sr. Counsel as to why these

findings are not correct. This Court does not propose to

consider and examine the evidence in detail again as it

may prejudice either of the parties as held by the Hon‟ble

Supreme Court in a case titled „Sanjay Dutt v. State of

Maharashtra, (2009) 5 SCC 787 wherein Hon‟ble Court

had declined to suspend the conviction of applicant so

that the bar under Section 8(3) of the Representation of

People Act, 1951 may not operate against him and he can

contest the election. In the said case, the Hon‟ble

Supreme Court has also discussed Navjot Singh Sidhu's

case (supra) and has distinguished the same on the

following grounds;

"We have carefully considered the contentions advanced by the petitioner. The petitioner has been convicted for serious offences. Of course, his conviction and sentence have been challenged before this Court in an appeal. Though our attention was drawn 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 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- 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 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 Cr.P.C. shall be exercised only under exceptional circumstances.

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 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 Court granted stay of the order of conviction and sentence in that case. 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. 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 purpose of disposal of Cr.M.P. No. 4087 of 2009- application for suspension/stay of conviction. In the result, Cr.M.P. Nos. 4087/2009, 5229/2009, 5230/2009, 5237/2009 and 5314/2009 are dismissed. (Emphasis supplied)"

14. Beside the judgment of Hon‟ble Supreme Court in

Navjot Singh Sidhu's case (supra), the petitioner has also

relied upon the judgment of Bombay High Court titled

"Anil Chhabildas Chaudhari v. The State of

Maharashtra, MANU/MH/1435/2011". I have gone

through the said judgment and am of the opinion that the

same is distinguishable on the basis of facts and

circumstances stated therein and particularly in view of

the observations of Hon‟ble Supreme Court in „Sanjay

Dutt's case (supra).

15. Coming to the present case, this Court is of the

opinion that Ld. Trial Court has given a detailed and

reasoned finding. It has discussed the evidence of the

witnesses in detail. It has disbelieved the alibi of the

appellant. Perusal of the judgment of Ld. Trial Court

reveals that it has dealt with the aspect of contradictions

appearing in the statement of witnesses. This Court is also

of the opinion that prima facie the contradictions pointed

out by Ld. Sr. counsel are minor in nature and do not go

to the root of prosecution version. This Court does not

want to go minutely into the details of the evidence as it

may prejudice either of the parties. At this stage, there are

prima facie no reasons to hold that the appeal of the

appellant will result in acquittal only.

16. In view of the above discussion, this Court is of the

opinion that it is not a case where this Court should stay

the conviction. Thus, in view of the law laid down by the

Hon‟ble Supreme court in Sanjay Dutt's case (supra),

and in view of the detailed and reasoned judgment given

by Ld. Trial Court and detailed judgment of the Co-

ordinate Bench of this Court dt. 15.01.2015 refusing to

stay the conviction of the appellant so that he could have

contested the election in the year 2015, no grounds are

made out for suspension of the conviction so as to allow

him to contest the forthcoming elections to be held in

February, 2020. However, it is made clear that nothing

stated herein will tantamount to opinion of this Court on

the merits of the appeal. The applications are, therefore,

dismissed.

BRIJESH SETHI, J JANUARY, 10, 2020 (AP)