Himachal Pradesh High Court

Indira Kapoor vs State Of Punjab on 20 October, 2022

Bench: Sandeep Sharma

                                                                     REPORTABLE

           IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                      ON THE 20TH DAY OF OCTOBER, 2022

                                       BEFORE




                                                                       .
                   HON'BLE MR. JUSTICE SANDEEP SHARMA





     CRIMINAL MISC. PETITION NO. 3176 OF 2022 IN CR. APPEAL NO. 245

                                       OF 2021





    Between:-

    INDIRA KAPOOR
    WIFE OF SHRI VIKRAM KAPPOR,
    RESIDENT OF VILLAGE SOUTHAL,





    POST OFFICE RATHIAR,
    TEHSIL AND DISTRICT CHAMBA, H.P.
                                                        APPLICANT/APPELLANT

    (BY MR. N.S. CHANDEL, SENIOR ADVOCATE WITH

    MR. SAT PRAKASH AND MR. PRANAV SHARMA,
    ADVOCATES)

    AND

    STATE OF H.P.
                                                                     RESPONDENT


    (BY MR. NARINDER GULERIA
    ADDITIONAL ADVOCATE GENERAL WITH
    MR. SUNNY DATWALIA,
    ASSISTANT ADVOCATE GENERAL)






      This petition coming on for orders this day, the court passed the following:

                                   O R D E R

By way of instant application filed under S.389(1) read with S.

482 CrPC, prayer has been made on behalf of applicant to stay the judgment

of conviction and order of sentence dated 7.8.2021 passed by learned Special

Judge, Chamba Division Chamba (HP) in Corruption Case No. 7 of 2015,

whereby learned Court below, while holding the applicant/appellant guilty of

having committed offence punishable under following provisions of law,

convicted and sentenced her as under:

     Section     Imprisonment              Fine             Sentence             in
                                                            default              of
                                                            payment
     420 IPC     Simple imprisonment       Rs.10,000        Imprisonment        for
                 for three years                            one month
     467 IPC     Simple imprisonment       Rs.10,000        Imprisonment        for
                 for three years                            one month




                                                                        .
     468 IPC     Simple imprisonment       Rs.10,000        Imprisonment        for





                 for three years                            one month
     471 IPC     Simple imprisonment       Rs.10,000/-      Imprisonment        for
                 for three years                            one month
     13(2)    of Simple imprisonment       Rs.5,000         Imprisonment        for





     Prevention for one year                                one month
     of
     Corruption
     Act

2. In terms of order dated 18.10.2022, respondent-State has filed reply in

the open court, which is taken on record. Today, during proceedings of the

case, a supplementary application to the instant application has been filed on

behalf of the applicant, seeking therein permission to place on record

additional facts, which may be relevant for the adjudication of the case at

hand. No reply is intended to be filed to the same by the respondent-State, as

such, same is taken on record and Registry is directed to register the same.

3. Precisely the facts of the case, which may be relevant for the

adjudication of the application at hand are that the applicant Indira Kapoor

alongwith other accused Roshan Lal, Chikni and Radha Devi came to be

booked and tried for commission of offence punishable under S. 420, 467,

468, 471 and 120-B IPC and S. 13(2) of the Prevention of Corruption Act on

the allegations that accused No.1 Mohan Singh, who at the relevant time was

BDC Member of Panchayat Samiti Mehla alongwith applicant Indira Kapoor,

who was Zila Parishad Member of Ward Sach and Roshan Lal, Gram

Panchayat Bharian Kothi, Tehsil and District Chamba, misappropriated and

embezzled various funds provided by the Government for carrying out

different public works in their respective areas.

4. Precisely the allegations against the applicant and other accused are

that they in connivance with each other and labourers made wrong/false

entries in muster roll with the intention to misappropriate the Government

money. Matter came to light when complaint Ext. PW-16/A in CC No. 6/2015

was filed by Bhagat Ram PW-4, who alleged that when he obtained

information under Right to Information Act, 2005 pertaining to Mehla Block for

years 2007, 2008, 2010, 2011, it was revealed that 10-12 labour were shown

marked at two different works on same date and time by applicant as well as

other accused namely Mohan Singh and Roshan Lal and they had been paid

wages by Roshan Lal in the capacity of Pradhan, Mohan Lal being BDC

Member and applicant being Zila Parishad member. Complainant also alleged

that during the period with effect from 1.4.2009 to 15.4.2009, 16.4.2009 to

30.4.2009, 5.8.2009 to 15.8.2009 and 16.8.2009 to 31.8.2009, accused

Mohan Singh being BDC member cheated Block Development Officer Mehrla

by dishonestly inducing him to make wrong payment of Rs. 10,150-/- on the

basis of false entries made in muster roll in the names of Nain Sukh son of

Mangta, Roshan Lal son of Chanan, Nain Sukh son of Haria and Rajender

Singh son of Jalam Singh. Complainant also alleged that during 1.3.2010 to

15.3.2010, applicant accused Inidra Kapoor being Zila Parishad Member

Ward Sach also cheated the Block Development Officer Mehla by dishonestly

inducing him to make wrong payment of Rs. 3300/- on the basis of false

entries made in muster roll in names of Raj Kumar son of Dhania and

Chararn Singh son of Dharmu of Rs.. 1650/- each. Complainant named above

also alleged that accused Roshan Lal being Pradhan, Gram Panchayat

Bharian Kothi also cheated Block Development Officer Mehla during period

1.3.2010 to 18.3.2010 by dishonestly inducing him to make wrong payment of

Rs.1980 on the basis of false and fictitious entries made in muster roll in the

name of Daulat Ram son of Phula. Apart from above, some more allegations

came to be leveled by the complainant but same pertain to other accused

namely Mohan Singh, Roshan Lal, Chikni and Radha Devi as such are not

required to be taken note while considering prayer made in the instant

petition.

5. Police, after conducting investigation, presented Challan in the court of

learned Special Judge Chamba Division Chamba, Himachal Pradesh, who on

the basis of evidence, be it ocular or documentary, held accused including

applicant/accused Indira Kapoor guilty of having committed offences

punishable under aforesaid provisions of law and convicted and sentenced

them as per description given above.

6. Being aggrieved and dissatisfied with judgment of conviction and order

of sentence recorded by learned Special Judge, Chamba, all the accused

including applicant Indira Kapoor filed Criminal Appeals in this court, praying

therein to set aside judgment of conviction and order of sentence recorded by

learned court below. Cr. Appeal No. 245 of 2021, having been filed by the

applicant, stands admitted on 26.8.2021. This court vide order dated

26.8.2021, passed in CrMP No. 1508 of 2021, suspended substantive

sentence imposed by learned court below subject to applicant furnishing

personal bonds of Rs. 25,000/- subject to satisfaction of learned trial Court

within one month with the condition that applicant shall appear as and when

directed to serve out sentence imposed, in case her appeal is dismissed.

Though, aforesaid appeal is pending adjudication but applicant has

approached this court in the instant application to stay the judgment of

conviction and order of sentence recorded by learned court below as she is

likely to get ticket from Bhartiya Janata Party to contest elections from

Chamba (Sadar) constituency.

7. Reply to the application stands filed on behalf of the non-

applicant/State, wherein prayer made on behalf of the applicant has been

opposed on the ground that applicant has indulged in serious crime of

corruption and as such, it may not be in the interests of justice to accede to

her prayer for staying the judgment of conviction and order of sentence.

8. Mr. Narinder Guleria, learned Additional Advocate General

representing the non-applicant/State argued that since applicant/appellant has

been found guilty in the case of corruption, she continues to be considered as

'corrupt' till the time judgment of conviction and order of sentence recorded by

learned court are is set aside by the superior court of law.

9. As has been taken note herein above, today during proceedings of the

case, applicant has filed supplementary application seeking therein to bring

on record additional facts. It has been stated in the aforesaid application that

the applicant has been made candidate by Bhartiya Janata Party to contest

elections from Chamba (Sadar) constituency, which are scheduled to be held

on 12.11.2022. To substantiate aforesaid fact, learned senior counsel

representing the applicant has made available copy of Press release issued

by Central Office, Bhartiya Janata Party New Delhi, dated 19.10.2022, which

is taken on record, perusal whereof reveals that the applicant has been made

candidate by Bhartiya Janata Party to contest Himachal Pradesh Vidhan

Sabha from Chamba (Sadar) constituency scheduled to be held on

12.11.2022.

10. Precisely, the case of the applicant, as has been highlighted in the

application and has been further canvassed by Mr. N.S. Chandel, learned

senior counsel duly assisted by Mr. Sat Prakash and Mr. Pranav Sharma,

Advocates, appearing for the applicant, is that the appeal having been filed by

the applicant/appellant is likely to succeed in all probabilities and in case

judgment of conviction and order of sentence are not stayed at this stage,

irreparable loss and injury would be caused to the applicant, who in the event

of findings of conviction standing against her, shall not be eligible to contest

the elections. It has been further stated that after doing social work in area for

a pretty good time, political party i.e. Bhartiya Janata Party has given ticket to

applicant to contest from Chamba (Sadar) constituency but in case, conviction

recorded by learned court below is not stayed, entire political career of the

applicant shall be ruined. Apart from above, Mr. N.S. Chandel, Senior

Advocate appearing for the applicant, while making this court peruse evidence

led on record by prosecution to prove guilt if any of applicant, vehemently

argued that no case much less case under aforesaid provisions of law is

made out against the applicant and learned court below has misread entire

evidence as a consequence of which, applicant has suffered prejudice and

she has been wrongly convicted. While referring to statements of material

prosecution witnesses, Mr. Chandel strenuously argued that the prosecution

has not been able to prove that the applicant, who at the relevant time was

Zila Parishad Member from Ward Sach, was not involved in marking presence

of labourers or making payment thereafter, rather, attendance was being

marked by Mate present on work site and payments were directly made by

office of Block Development Officer to the labourers, on the basis of

verification of work done by Junior Engineer concerned, who has not been

made an accused. He further submitted that all the labourers, who were

allegedly given undue benefits by applicant, have categorically stated that

they worked under applicant at relevant time and received payments directly

in their accounts, but yet learned court below proceeded to hold applicant

guilty of having committed offence punishable under aforesaid provisions of

law. While fairly admitting that this court, while exercising power under S. 389

CrPC can stay the judgment of conviction and order of sentence in rarest of

rare cases, Mr. Chandel argued that the case of the applicant also falls in the

'rarest of rare' cases because in the case at hand, applicant has got finest

opportunity to shape her political career by contesting elections, that too from

Bhartiya Janata Party and in case judgment of conviction and order of

sentence recorded against her are allowed to come in her way, which are

otherwise not sustainable in the eye of law, entire political career of applicant,

who is otherwise innocent shall diminish.

11. I have learned counsel for the parties and perused the material

available on record.

12. Though there is no disagreement inter se learned counsel for the

parties that this court while suspending sentence imposed by learned trial

Court under S. 389 (2) CrPC has also power to stay the conviction recorded

by learned trial Court in exceptional cases but yet this court deems it fit to take

note of recent judgments of Hon'ble Apex Court wherein it has been held that

judgment of conviction is to be stayed in exceptional circumstances, in 'rarest

of rare' cases.

13. In Novjot Singh Sidhu vs. State of Punjab, (2007) 2 SCC 574,

Hon'ble Apex Court held that stay of order of conviction by appellate court is

an exception to be resorted to in rarest of rare cases, after the attention of the

appellate court is drawn to the consequences, which may ensue if conviction

is not stayed. Hon'ble Apex Court in the judgment (supra) has held as under:

"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. Hon'ble Apex Court in Ravikant S. Patil vs Sarvabhouma S.

Bagali (2007) 1 SCC 673, while reiterating aforesaid law laid down in Navjot

Singh Sidhu (supra) further clarified that the disqualification arising out of

conviction ceases to operate, after stay of the conviction.

15. Recently, a three-judge Bench of Hon'ble Apex Court in Lok

Prahari v. Election Commission of India, (2018) 18 SCC 114 has

summarized law on this point as under:

"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 5 , 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:

"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 4 Section 389 provides as

follows :

"Suspension of sentence pending the appeal; release of appellant on bail. (1) Pending any appeal by a convicted person, the Appellate Court may,

for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto. (3) Where the convicted person satisfies the

Court by which he is convicted that he intends to present an appeal, the Court shall,-

(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or

(ii) where the offence of which such person has been convicted is a

bailable one, and he is on bail, order that the convicted person be

released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub- section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced." 5 (1995) 2 SCC 513 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 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."

11 In Navjot Singh Sidhu v State of Punjab 6 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:

"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."

12 The above position was reiterated by a Bench of three judges of

this Court in Ravikant S Patil v Sarvabhouma S Bagali 7 , after adverting to the earlier decisions on the issue, viz. Rama Narang v Ramesh Narang (supra), State of Tamil Nadu v A. Jaganathan8,

K.C. Sareen v CBI, Chandigarh9, B.R. Kapur v State of T.N. (supra)

and State of Maharashtra v Gajanan.10 This Court concluded as follows:-

"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 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."

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 of the Cr.P.C., the disqualification under Section 8 will not operate. The

decisions in Ravi Kant 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. 11 Id at page 673 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 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."

16. Hon'ble Apex Court in Shyam Narain Pandey v. State of U.P. (2014)

8 SCC 909, has held that since sentence can be suspended after recording

reasons therefore no hard and fast rules/guidelines can be laid that what such

exceptional circumstances are where stay can be granted.

17. Aforesaid exposition of law, taken into consideration herein above

reveals that appellate court besides enjoying power to suspend the sentence

has also the power to stay the conviction but in exceptional cases. Order

granting stay of conviction is not the rule but an exception to be resorted in

rarest of the rare cases, depending upon the facts of the case. Since power to

stay conviction is by way of an exception, before it is exercised, appellate

court must be made aware of the consequence, which will ensue if conviction

is not stayed. Power of suspension of conviction is vested to

the appellate court to ensure that the conviction on untenable or frivolous

grounds does not operate to cause serious prejudice. Hon'ble Apex Court in

Lily Thomas v. Union of India, (2013) 7 SCC 653, has clarified that the 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 of the Representation of the People Act, 1951. Order of

disqualification passed prior to order of stay of order of conviction ceases to

operate after stay of conviction.

18. Now being guided by the aforesaid law laid down by Hon'ble Apex

Court, this Court now shall make an endeavour to find out, "whether the

present is an exceptional case for grant of stay of the conviction, during the

pendency of appeal, or not?"

19. Precisely the allegations against the applicant herein are that while

she was Zila Parishad Member from Ward Sach, she alongwith co-accused

Mohan Singh, BDC member Mehla during 2008-2010 and co-accused

Roshan Lal, Pradhan, Gram Panchayat Bharian Kohti, Tehsil and District

Chamba, forged documents and made payments to numerous persons. It also

came to be alleged against the applicant and other accused named above

that all the accused while executing developmental works in their respective

Wards/areas, connived with each other and labourers and misappropriated

/embezzled public money. It has been alleged against the applicant and other

accused that 10-12 labourers were shown to be marked present at two

different works on one date and same time, by applicant and other accused

and they have been paid wages by accused named in the FIR. In nutshell

allegation against the accused is that she being Zila Parishad Member, Ward

Sach cheated the Block Development Officer Mehlra by dishonestly inducing

him to make payment of Rs. 3300/- on the basis of wrong entries in muster

rolls in the names of Raj Kumar son of Dhania and Charan Singh son of

Dharmu of Rs. 1650/- each. Since the above named laboruers Raj Kumar and

Charan Singh were also paid wages by Roshan Lal, Pradhan, Gram

Panchayat Bharian Kothi during the period with effect from 1.3.2010 to

18.3.2010, qua which aforesaid persons were already made payment by the

applicant for having worked in her Ward, it has been alleged against the

applicant and other accused that they in connivance with each other and

labourers, usurped public funds as such, they are liable to be punished under

appropriate provisions of law.

20. Judgment sought to be stayed in the instant proceedings reveals that

the learned trial Court has placed heavy reliance upon statements made by

three prosecution witnesses namely PW-19 Dole Ram, PW-21 Raj Kumar,

PW-25 Charan Singh, who have been shown to have worked under applicant

during the period with effect from 1.3.2010 to 15.3.2010 in the muster roll

Exhibits PW-16/A and PW-16/B. Since aforesaid persons are also shown to

have worked with accused Roshan Lal, Pradhan, Gram Panchayat Bharian

Kothi during the period 1.3.2010 to 15.3.2010, attempt has been made by

prosecution to prove that none of the labourers named in muster roll had

actually worked on the spot, rather all the accused, who at that time were

holding public offices of Pradhan, Gram Panchayat, BDC and Zila Parishad,

connived with each other and forged the record, with a view to cheat and

dishonestly induce Block Development Officer to make payments in favour of

those labourers, who had actually not worked at the site in question.

21. Having minutely perused the statements made by all the aforesaid

prosecution witnesses, this court finds force in the submission of Mr. N.S.

Chandel, learned Senior Advocate appearing for accused that none of

material prosecution witnesses have denied factum of their having worked

with applicant as labourer during the period with effect from 1.3.2010 to

15.3.2010. Since all the prosecution witnesses resiled from their statements,

they were declared hostile, however, learned trial Court, while holding

applicant guilty of having committed offences in question, placed heavy

reliance upon cross-examination of these witnesses by Public Prosecutor and

other Defence Counsel. But if the cross-examination conducted by Public

Prosecutor and other defence counsel is perused in entirety juxtaposing each

other, it is clear that they have not denied factum with regard to their having

worked with applicant from 1.3.2010 to 15.3.2010, rather they stated that they

worked with the applicant during aforesaid period and their presence was

being marked by Mate concerned in the muster roll. Most importantly these

witnesses admitted the factum of receipt of payment. Raj Kumar, in his cross-

examination admitted that he received payment qua work done by him under

applicant during the period with effect from 1.3.2010 to 15.3.2010 through

bank.

22. Leaving everything aside, statement of Secretary Gram Panchayat

PW-16 namely Beli Ram is very relevant. Bare perusal of statement made by

this witness reveals that Zila Parishad Member had to do nothing with the

preparation of muster roll rather same is prepared by Mate and work is

supervised by Junior Engineer. His statement further reveals that the payment

is made on the basis of muster roll after verification by the Junior Engineer of

Gram Panchayat and wages directly go into the accounts of the labourers.

This witness categorically stated in the cross-examination that no muster roll

was issued in the name of applicant-Indira Kapoor and muster rolls are

maintained by Mate, who marks attendance of the workers and Junior

Engineer of Gram Panchayat verifies the muster roll. This witness

categorically stated in cross-examination that Zila Parishad Member has no

concern with the muster roll.

23. If the judgment of conviction recorded by learned court below is

perused in its entirety, it clearly reveals that judgment of conviction recorded

against applicant is based upon statements made by prosecution witnesses

PW-19, PW-21 and PW-25 but the statements made by these witnesses as

noted above, do not appear to be sufficient to conclude the guilt, if any, of the

applicant/appellant, who otherwise being aggrieved by judgment of conviction

and order of sentence recorded by learned court below has approached this

court by way of an appeal, conclusion whereof may take some considerable

time.

24. Though this court, while staying the judgment of conviction and order of

sentence is required to go through whole evidence without commenting upon

its merit, but while carrying out such exercise, it requires to satisfy itself

whether a strong case is made out against appellant or not? Prosecution is

obliged to prove its case beyond all reasonable doubts and not on

preponderance of probabilities?

25. Applicant has been granted party ticket by Bhartiya Janata Party to

contest elections from Chamba (Sadar) constituency of Himachal Pradesh

Vidhan Sabha but judgment of conviction recorded against her has rendered

her to be disqualified to contest said elections as the imprisonment is of more

than two years. Besides above, applicant would be also debarred from

contesting elections on account of her being sentenced for more than two

years in terms of Representation of Peoples Act, 1951, in case judgment of

conviction is not stayed. Though the appeal stands filed in this court but since

considerable time may be consumed in its final conclusion, prayer has been

made by applicant to stay judgment of conviction recorded by learned Court

below, so that she does not lose chance/opportunity to serve people of her

area by contesting elections to Himachal Pradesh Vidhan Sabha from political

party like Bhartiya Janata Party. Certainly in a democratic set up, restriction

on exercise of such right can be considered hardship to the applicant,

especially if she is able to show that conviction and sentence are not based

upon cogent and convincing evidence and she has a fair chance to succeed

in appeal against the conviction and sentence recorded by the trial court.

26. Though appeal is to be decided by this court on merit, but having taken

note of aforesaid aspects of the matter, this court is of the view that the case

at hand comes under the category of 'exceptional' case and, in case

conviction is not stayed, petitioner's political career would be ruined. For the

reasons stated herein above, this Court finds that on account of conviction,

petitioner has been rendered disqualified to be a Member of Legislative

Assembly and, in case conviction is not stayed, she would not be able to

contest the elections, which are otherwise bound to be held on 12.11.2022.

Since conclusion of appeal may take some time and in the event of appeal

being allowed and applicant being acquitted, she cannot be compensated for

the loss, which she may suffer on account of her losing chance to contest

elections to Himachal Pradesh Vidhan Sabha as Member of Legislative

Assembly.

27. No doubt, power under S.389 CrPC is to be exercised sparingly and

with circumspection so as to stay the conviction, yet it is equally true that

principle of law is to be applied as per peculiar facts and circumstances of

each case. There cannot be a straightjacket formula rather, each case is to be

examined in its own peculiar facts and circumstances. In case, conviction of

petitioner is not stayed, she will suffer the consequences, which cannot be

compensated subsequently in any terms and are irreversible.

28. In case Padam Singh v. State of U.P., (2000) 1 SCC 621, Hon'ble

Apex Court has held that presumption of innocence with which the accused

starts, continues right through until he/she is held guilty by the final court of

appeal and that presumption is neither strengthened by an acquittal nor

weakened by a conviction in the trial court.

29. In Retti Deenabandu and others v. State of Andhra Pradesh, 1977

SCC (Crl.) 173 , Hon'ble Apex Court has held that the conviction for an

offence entails certain consequences. Conviction also carries with it a stigma

for the convicted person. A convicted person challenging his conviction, in an

appeal not only seeks to avoid undergoing the punishment imposed upon him

as a result of the conviction, but he/she also wants that other evil

consequences flowing from the conviction should not visit him and that the

stigma which attaches to him/her because of the conviction should be' wiped

out.

30. Reliance placed by learned Additional Advocate General on the

judgment rendered by Hon'ble Apex Court in K.C. Sareen v. CBI,

Chandigarh, 2001 (3) RCR (Criminal) 718: JT 2001 (6) SC 59, is misplaced

in the given facts and circumstances of the instant case. No doubt, in the

aforesaid judgment, Hon'ble Apex Court has held that when a public servant

was found guilty of corruption after a judicial adjudicatory process conducted

by a court of law, judiciousness demands that he should be treated as corrupt

until he is exonerated by a superior court but, after passing of judgment in

K.C. Sareen (supra), Hon'ble Apex Court has rendered a number of

judgments, wherein it has been held that judgment of conviction can be

stayed in "exceptional" cases. Since, there is no hard and fast rule/guidelines

as to what are those exceptional circumstances, Hon'ble Apex Court

in Shyam Narain Pandey v. State of U.P. (2014) 8 SCC 909, has attempted

to cull out certain circumstances, which can be termed to "exceptional"

circumstances, as under:

"5. It has been consistently held by this Court that unless there are exceptional circumstances, the appellate court shall not stay the conviction,

though the sentence may be suspended. There is no hard and fast rule or guidelines as to what are those exceptional circumstances. However, there are certain indications in the Code of Criminal Procedure, 1973 itself as to which are those situations and a few indications are available in the judgments of this Court as to what are those circumstances.

6. It may be noticed that even for the suspension of the sentence, the court has to record the reasons in writing under Section 389(1) Cr.PC. Couple of provisos were added under Section 389(1) Cr.PC pursuant to the recommendations made by the Law Commission of India and observations of this Court in various judgments, as per Act 25 of 2005. It was regarding the

.

release on bail of a convict where the sentence is of death or life

imprisonment or of a period not less than ten years. If the appellate court is inclined to consider release of a convict of such offences, the public prosecutor has to be given an opportunity for showing cause in writing against

such release. This is also an indication as to the seriousness of such offences and circumspection which the court should have while passing the order on stay of conviction. Similar is the case with offences involving moral turpitude. If the convict is involved in crimes which are so outrageous and yet beyond

suspension of sentence, if the conviction also is stayed, it would have serious impact on the public perception on the integrity institution. Such orders definitely will shake the public confidence in judiciary. That is why, it has been

cautioned time and again that the court should be very wary in staying the

conviction especially in the types of cases referred to above and it shall be done only in very rare and exceptional cases of irreparable injury coupled with irreversible consequences resulting in injustice."

31. Since in the case at hand, court after having scanned entire evidence

relied upon by learned court below, while holding applicant guilty of offence

punishable has already observed in earlier part of order that there is no

sufficient evidence to connect accused with the offence alleged to have been

committed by her, much less offence punishable under S. 13(2) of Prevention

of Corruption Act, it would too harsh at this stage, to deny the prayer made on

behalf of the applicant.

32. Accordingly, in view of the detailed discussion held supra and the law

taken note above, present application is allowed. Judgment of conviction and

order of sentence dated 7.8.2021 passed by learned Special Judge, Chamba

Division Chamba (HP) in Corruption Case No. 7 of 2015 is stayed, till the final

adjudication of the appeal.