Jharkhand High Court

Aman Sahu vs The State Of Jharkhand on 24 October, 2024

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

                          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                   Cr. Appeal (SJ) No. 1081 of 2018
                 Aman Sahu, aged about 21 years, son of Niranjan Prasad Sahu, Resident of
                 Village Matwe, P.O. & P.S. Budmu, District- Ranchi, presently residing at
                 F.O. Colony, Quarter No.342, P.O. & P.S. Patratu, District- Ramgarh
                                                                        ... Appellant
                                            -Versus-
                 The State of Jharkhand                                  ... Respondents
                                                  -----

CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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                 For the Appellant          : Mr. Hemant Kumar Shikarwar, Advocate
                 For the State              : Mrs. Lily Sahay, A.P.P.
                                                  -----

08/24.10.2024            I.A. No.11437 of 2024

Heard Mr. Hemant Kumar Shikarwar, learned counsel appearing for

the appellant and Mrs. Lily Sahay, learned counsel appearing for the State.

2. This appeal is already admitted and the Trial Court Records has been

received and the appellant is on bail.

3. I.A. No.11437 of 2024 has been filed for suspension/stay of conviction

during pendency of the present appeal.

4. The appellant desirous to contest the election to public office for

Legislative Assembly of the State of Jharkhand, however, he is disqualified

to do so on account of his conviction.

5. Learned counsel appearing for the appellant submits that the

appellant has been convicted vide judgment dated 04.04.2018 and sentence

dated 04.05.2018 passed by the learned Additional Sessions Judge-II,

Ramgarh in Sessions Trial Case No.75/2016, whereby, he has been found

guilty for the offences under Section 25(1-A) of the Arms Act and under

Section 471 of the Indian Penal Code and also under Section 17(2) of

Criminal Law Amendment Act and he has been sentenced to undergo R.I.

for six years for the offence punishable under Section 25(1-A) of the Arms

Act with fine of Rs.5,000/- and in case of default of payment of fine, he has

been further sentenced to undergo S.I. for six months. The appellant has

been further sentenced to undergo R.I. for three years for the offence

punishable under Section 471 of the Indian Penal Code with fine of

Rs.2,000/- and in case of default of payment of fine, he has been further

sentenced to undergo S.I. for one month. The appellant has also been

sentenced to undergo R.I. for one year for the offence punishable under

Section 17(2) of the Criminal Law Amendment Act, 1908 and direction was

there that all the sentences shall run concurrently. He further submits that

the appellant has been granted bail in this appeal vide order dated

28.02.2019, however, he is still in jail custody in connection with another

case. He also submits that in light of the judgment of the Hon'ble Supreme

Court in the case of Navjot Siingh Sidhu v. State of Punjab and

another, reported in (2007) 2 SCC 574 as well as the order passed by

this Court in Cr. Appeal (SJ) No.56 of 2023 in the case of Mamta Devi v.

The State of Jharkhand, the case of the appellant is fully covered and, as

such, the benefit may kindly be granted to the appellant.

6. Learned counsel appearing for the State opposed the prayer on the

ground that this appellant is having a checkered career and he is having

criminal antecedent of more than 100 cases that too of grievous in nature.

She submits that in view of that no case of stay is made out and, as such,

this I.A. may kindly be rejected.

7. In view of the above submissions of the learned counsel for the

parties, the only question to be addressed by this Court as to whether at

this stage the prayer made by the appellant can be allowed or not. It is an

admitted position that the appellant is having criminal antecedent of more

than 100 cases and it was pointed out that the cases are grievous in nature

and he is still in jail custody with regard to another cases.

8. The power of Court to stay the conviction has been considered by the

Hon'ble Supreme Court in several decisions and in the case of Navjot

Singh Sidhu (supra), on which, much reliance has been placed by the

learned counsel for the appellant, the Hon'ble Supreme Court has

summarized legal position in paragraph 4 of the said judgment, which reads

as under:

"4. Before proceeding further it may be seen whether there is any provision which may enable the Court to suspend the order of conviction as normally what is suspended is the execution of the sentence. Sub-section (1) of Section 389 says that 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 or bail, or on his own bond. This Sub-section confers power not only to suspend the execution of sentence and to grant bail but also to suspend the operation of the order appealed against which means the order of conviction. This question has been examined in considerable detail by a Three Judge Bench of this Court in Rama Narang v. Ramesh Narang & others, (1995) 2 SCC 513 and Ahmadi, C.J., speaking for the Court, held as under :

"19. That takes us to the question whether the scope of Section 389(1) of the Code extends to conferring power on the Appellate Court to stay the operation of the order of conviction. As stated earlier, if the order of conviction is to result in some disqualification of the type mentioned in Section 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. We are, therefore, of the opinion that the Division Bench of the High Court of Bombay was not right in holding that the Delhi High Court could not have exercised jurisdiction under Section 482 of the Code if it was confronted with a situation of there being no other provision in the Code for staying the operation of the order of conviction. In a fit case if the High Court feels satisfied that the order of conviction needs to be suspended or stayed so that the convicted person does not suffer from a certain disqualification provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone; the disqualification incurred by Section 267 of the Companies Act and given effect to cannot be undone at a subsequent date if the conviction is set aside by the Appellate Court. But while granting a stay or suspension of the order of conviction the Court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in so doing it may, if it considers it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company.""

9. The aforesaid view has also been reiterated and followed by another

Three Judge Bench in Ravikant S. Patil v. Sarvabhouma S. Bagali ,

reported in (2007) 1 SCC 673 and after considering the judgment in the

case of State of Tamilnadu v. A. Jaganathan, reported in (1996) 5

SCC 329 and K.C. Sareen v. C.B.I., Chandigarh, reported in (2001) 6

SCC 584 and B.R. Kapur v. State of T.N. & Anr., reported in (2001) 7

SCC 231 and State of Maharashtra v. Gajanan, reported in (2003) 12

SCC 432, the Hon'ble Supreme Court observed as under:

"16.5. All these decisions, 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."

10. The Hon'ble Supreme Court also observed in Ravikant S. Patil

(supra) as under:

"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. 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 conviction specifying the consequences if conviction was not stayed, that is, the appellant would incur disqualification to contest the election. The High Court after considering the special reason, granted the order staying the conviction. As the conviction itself is stayed in contrast to a stay of execution of the sentence, it is not possible to accept the contention of the respondent that the disqualification arising out of conviction continues to operate even after stay of conviction."

11. 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. In view of the above, the said power is to be exercised in exceptional

circumstances and in cases where the Court is convinced that not staying

conviction would lead to injustice and irreversible consequences.

13. Seeing the crime in politics, steps are required to be taken for

decriminalisation of politics. A large number of persons who have committed

grievous crime are being elected as a Member of either Legislative Assembly

or Parliament. This concern was the subject matter before the Hon'ble

Supreme Court in Public Interest Foundation and others v. Union of

India and others, reported in (2019) 3 SCC 224, in which, the Hon'ble

Supreme Court has observed as under:

"2. The constitutional functionaries, who have taken the pledge to uphold the constitutional principles, are charged with responsibility to ensure that the existing political framework does not get tainted with the evil of corruption. However, despite this heavy mandate prescribed by our Constitution, our Indian democracy, which is the world‟s largest democracy, has seen a steady increase in the level of criminalisation that has been creeping into the Indian polity. This unsettlingly increasing trend of criminalisation of politics, to which our country has been a witness, tends to disrupt the constitutional ethos and strikes at the very root of our democratic form of government by making our citizenry suffer at the hands of those who are nothing but a liability to our country."

14. In the above judgment, the Hon'ble Supreme Court has considered

this aspect of the matter and ordered to disqualify the persons who were

charged with heinous offences, to contest the election to public office.

15. In view of the above, it is crystal clear that in light of the judgment of

the Hon'ble Supreme Court, the persons who are having checkered history

of heinous crime, they ought to be disqualified from contesting the election.

If this Court stays the conviction, that will be opposite to the verdict of the

Hon'ble Supreme Court.

16. In the case of Navjot Singh Sidhu (supra), the said person was

already elected as a Member of Parliament and in this background, that

order was further passed. So far as the case of Mamta Devi (supra) is

concerned, that case is on different footing. She was not having criminal