Smt. Sheela Kushwah vs The State Of Madhya Pradesh
2023 Latest Caselaw 432 MP

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                                      IN THE HIGH COURT OF MADHYA PRADESH
                                                   AT JABALPUR
                                                     CRA No. 11606 of 2022
                                    (SMT. SHEELA KUSHWAH AND OTHERS Vs THE STATE OF MADHYA PRADESH)

                      Dated : 09-01-2023
                           Shri Shashank Shekhar - Senior Advocate with Shri Bhoopesh Tiwari - Advocate

                     and Shri Narunaditya Singh - Advocate
                           Shri Alok Agnihotri - Dy.G.A - for State


                           T his appeal is filed by appellants under Section 374 of Cr.P.C against the
                     judgment dated 02/12/2022 passed in Special Case PPS No.2/2022 by Special Judge in

                     (M.P./MLA) District Gwalior (M.P.), whereby the Court below has convicted the
                     appellants for the offence punishable under Sections 420, 120-B of IPC and sentenced
                     them to undergo RI for two years with fine of Rs.10,000/-with default stipulations.
                           Heard on the question of admission and I.A.No.23865/2022, application under
                     Section 389 of Cr.P.C for suspension of sentence and grant of bail to the appellants.
                           Considering the submission made by the counsel for the appellant, it appears that
                     appeal involves arguable points, therefore it is admitted for final hearing.
                           I t is contended by counsel for appellants that sentence of appellants has been
                     suspended by the Court below till 17/01/2023. It is further contended that from the

                     findings given by the Court below in paragraph 83 of its judgment, it is clear that
                     appellant no.1 has given power of attorney to the co-accused namely Krishna Gopal
                     Chourasia who under the garb of power of attorney has executed the sale-deed in favour
                     of complainant namely Purshottam Shakya and in lieu of execution of sale-deed (Ext P-4)
                     an amount of consideration i.e Rs. 7,43,500/-has been received by him. It is contended
                     that as per the admission made by the complainant, the amount of consideration was not
                     paid before the Registrar and sale-deed also not contains any signatures of appellants. He
                     further contended that appellants have not committed any crime alleged against them for
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KUSHWAHA
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                     the reason that co-accused at his own instance has executed the sale-deed under the garb
                     of power of attorney, whereas appellant no.1 was under the impression that she has
                     already sold the land which belongs to her, therefore, no further transaction would be
                     taken place in pursuant to the said power of attorney but it is the co-accused who has
                     done so, therefore, appellants cannot be held guilty for the same. It is further contended
                     that so far as the appellant no.2 is concerned, he is nowhere in the picture. The role of
                     appellant no.2 is nothing in the alleged offence except the fact that he is husband of
                     appellant no.1 who is owner of the land and also executor of the power of attorney in
                     favour of Krishna Gopal Chourasia.
                           Per contra, counsel for State has opposed the submissions made by counsel for

                     appellants and submitted that merely because sale-deed has not been executed by the
                     appellants but the same got executed in pursuance to the power of attorney given by the
                     appellant no.1 and as such executant of sale-deed has acted as per the authority given by
                     power of attorney and the appellant no.1 is executor, therefore, she is responsible for the
                     act committed by the holder of power of attorney. He submits that appellant no.1 has
                     rightly been convicted and merely because Court below has granted bail till 17/01/2023, it
                     would not be proper to grant bail the appellants.
                           I have heard the submissions made by counsel for parties, perused the record and
                     judgment passed by the trial court.
                           Perusal of record clearly reveals that appellants have not executed the sale-deed
                     and they are also not the witnesses of the same. The amount of consideration was also
                     not paid before the Registrar, therefore, the bail application of the present appellants i.e
                     IA No. 23865/2022 is considered and allowed.
                           It is directed that remaining jail sentence of appellants shall remain suspended and
                     they shall be released on bail on their furnishing a personal bond in the sum of Rs.

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                     1,00,000/- (Rupees One Lac) each with a surety bond each of like amount to the
                     satisfaction of the trial Court concerned for their appearance before the CJM, Gwalior on
                     17/04/2023 and on such other dates as may be fixed by that Court in this regard.
                           Also heard on I.A.No.23864/2022, application for staying the conviction dated
                     02/12/2022 of appellants.
                           It is submitted by counsel for appellants that appellant no.2 is a sitting MLA and
                     elected member of legislative assembly of Madhya Pradesh and if conviction is not
                     stayed his membership would be in danger.         He has drawn attention of this Court
                     towards the provision of Representation of People Act. He prayed to stay the conviction
                     of the appellant no.2 and submitted that if the conviction is not stayed, it is every
                     possibility that the party from which he has been elected and contested the election will
                     not allow him to contest the election and grant ticket of legislative assembly and deprived
                     him to contest the election. To substantiate his submission, he has relied upon a judgment
                     passed by the Supreme Court in (Lok Prahari through its General Seretary Vs.
                     Election Commission of India and others) reported in (2018) 18 SCC 114 and orders
                     passed by this Court in Criminal Appeal 9444/2019 (Prahlad Lodhi Vs. State of M.P)
                     and in Cr.A.No.10870/2019 (Shakuntala Khatik vs. State Of Madhya Pradesh). For
                     ready reference of this Court relevant paragraphs 13, 14 and 16 of the case (Lok
                     Prahari) (supra) are quoted herein below:-

                               13. In Navjot Singh Sidhu v. State of Punjab [Navjot Singh Sidhu
                               v. State of Punjab, (2007) 2 SCC 574 : (2007) 1 SCC (Cri) 627 :
                               AIR 2007 SC 1003] 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 : (SCC pp.
                               581-82, para 6)
                               œ6. The legal position is, therefore, clear that an appellate
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                               court can suspend or grant stay of order of conviction. But the
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                          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.
                          1 4 . The above position was reiterated by a Bench of three
                          Judges of this Court in Ravikant S. Patil v. Sarvabhouma S.
                          Bagali [Ravikant S. Patil v. Sarvabhouma S. Bagali, (2007) 1
                          SCC 673 : (2007) 1 SCC (Cri) 417] , after adverting to the
                          earlier decisions on the issue viz. Rama Narang v. Ramesh
                          Narang [Rama Narang v. Ramesh Narang, (1995) 2 SCC 513] ,
                          State of T.N. v. A. Jaganathan [State of T.N. v. A. Jaganathan,
                          (1996) 5 SCC 329 : 1996 SCC (Cri) 1026] , K.C. Sareen v. CBI
                          [K.C. Sareen v. CBI, (2001) 6 SCC 584 : 2001 SCC (Cri) 1186]
                          , B.R. Kapur v. State of T.N. [B.R. Kapur v. State of T.N.,
                          (2001) 7 SCC 231] and State of Maharashtra v. Gajanan [State
                          of Maharashtra v. Gajanan, (2003) 12 SCC 432 : 2004 Supp
                          SCC (Cri) 459] . This Court concluded as follows : (Ravikant S.
                          Patil case [Ravikant S. Patil v. Sarvabhouma S. Bagali, (2007) 1
                          SCC 673 : (2007) 1 SCC (Cri) 417] , SCC p. 679, para 15)

                          œ15. 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 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
                          [Sarvabhouma S. Bagali v. Ravikant S. Patil, 2005 SCC OnLine
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                          Kar 799] 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 CrPC, the disqualification under Section 8 will not operate. The decisions in Ravikant S. Patil [Ravikant S. Patil v. Sarvabhouma S. Bagali, (2007) 1 SCC 673 : (2007) 1 SCC (Cri) 417] and Lily Thomas [Lily Thomas v. Union of India, (2013) 7 SCC 653 : (2013) 3 SCC (Civ) 678 : (2013) 3 SCC (Cri) 641 : (2013) 2 SCC (L&S) 811] conclude the issue. Since the decision in Rama Narang [Rama Narang v. Ramesh Narang, (1995) 2 SCC 513] , 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. 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 [Rama Narang v. Ramesh Narang, (1995) 2 SCC 513] 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 Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 1/10/2023 6:23:32 PM

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 [Lily Thomas v. Union of India, (2013) 7 SCC 653 : (2013) 3 SCC (Civ) 678 : (2013) 3 SCC (Cri) 641 : (2013) 2 SCC (L&S) 811] 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. I n contrast, counsel for State submits that merely because appellant no.2 is a member of legislative assembly and there is possibility that he would also contest the election in coming election of legislative assembly, the conviction cannot be stayed. He further submits that period of conviction is two years and as per the provision of Representation of the People Act, appellant no.2 is still eligible to contest the election; he cannot be deprived to contest the same, therefore, the application is misconceived and deserves to be dismissed.

I n response, counsel for appellant strenuously argued that merely because land

belongs to the wife of the present appellant and she entered into some transaction with the complainant, it is not necessary that said transaction must be in the knowledge of the appellant no.2. Even otherwise, the knowledge of a particular transaction does not constitute any offence against the appellant no.2 and as such conviction is without any foundation and if the same is not stayed, appellant no.2 would suffer irreparable loss.

I have heard the submissions of both the parties and perused the record. Indisputably, the appellant no.2 is not executant of power of attorney under the garb of which the power of attorney holder has executed the alleged sale-deed said to have been executed fraudulently in favour of complainant Purshottam Shakya. The appellant no.2 is neither the owner of the land nor he is witness of the sale-deed. As per the statement of complainant the sale consideration was also not paid before the Registrar Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 1/10/2023 6:23:32 PM

but trial court has acted against the appellant no.2 presuming that he is the husband of the appellant no.1, therefore, there is no reason to disbelieve that appellant no.2 must not be aware about the transaction made by his wife appellant no.1. Except this, no role has been played by the appellant no.2 in the alleged crime.

From the law laid down by the Supreme Court in (Lok Prahari) (supra), it is crystal clear that the view of the Supreme Court with regard to staying the conviction is very specific and power can be exercised by the High Court assigning reasons thereof and showing the consequence that what loss would cause to the appellant if conviction is not stayed. The Supreme Court has very categorically observed that the power of granting stay on conviction can be exercised in rare cases. Undoubtedly, granting stay of conviction is not the rule but an exception, to be resorted in rare cases depending upon facts of the case.

Here in this case, it is contended by the counsel for the appellant that if stay is not granted the appellant no.2 would be disqualify to hold the post of member of legislative assembly and can also be disqualified from contesting the further election.

From the overall facts and circumstances of this case, it is clear that appellant no.2 prima facie has nothing to do with the alleged crime; he is not at all connected with the same but only because he is husband of appellant no.1 who is the owner of the land and executed power of attorney to the Krishan Gopal Chourasia conviction has been made. It is the Krishan Gopal Chourasia who has committed alleged crime. The appellant no.2 may not be held guilty because no offence is made out against him but if conviction is not stayed it would cause prejudice to the appellant no.2.

Considering the orders passed in (Prahlad Lodhi) (supra) and (Shakuntala Khatik) (supra), it is not proper for this Court to give any finding at this stage on merits of the case but prima facie considering the evidence available on record and findings given by the Court below, appellant no.2 is entitled to get relief which is claimed in his Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 1/10/2023 6:23:32 PM

application seeking stay on conviction because if the same is not granted he would suffer irreparable loss as he has an elected member of legislative assembly and would be deprived to be continued to hold the said post and can also be deprived to contest the election of legislative assembly, as such application for staying the conviction in respect of appellant no.1 is not being considered and allowed because as per facts and circumstances and reasons assigned hereinabove the prejudice would cause only to appellant no.2, therefore, conviction of only appellant no.2 as passed by Special Judge (M.P./MLA) District Gwalior in SC PPS No.02/2022 by judgment dated 02/12/2022 shall remain stayed till the next date of hearing.

The application for staying the conviction i.e I.A.No.23864/2022 is allowed only for appellant no.2. The same is hereby rejected f o r appellant no.1-Smt. Sheela Kushwah.

Certified copy as per rules.

(SANJAY DWIVEDI) JUDGE

sushma

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