Madhya Pradesh High Court
Chandar Singh Sondiya vs The State Of Madhya Pradesh on 27 February, 2024
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 27 th OF FEBRUARY, 2024
MISC. CRIMINAL CASE No. 7978 of 2024
BETWEEN:-
CHANDAR SINGH SONDIYA S/O SADALAL, AGED ABOUT 43
YEARS, OCCUPATION: CHAIRMAN ZILLA PANCHAYAT ADDRESS
VILLAGE SALRIYAKHEDI TEHSIL SUTHALIYA RAJGARH
(MADHYA PRADESH)
.....APPLICANT
(BY SHRI SANKALP KOCHAR - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THORUGH POLICE STATION
RAJGARH DISTRICT RAJGARH (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI PUNEET SHROTI - GOVERNMENT ADVOCATE)
T h is application coming on for admission this day, t h e cou rt passed the
following:
ORDER
Heard.
This is a petition under Section 482 of the Code of Criminal Procedure filed by the
petitioner feeling aggrieved and dissatisfied with the order dated 05.02.2024 passed by
the XXI Additional Sessions Judge and Special Judge MP/MLA Bhopal in Criminal
Appeal No. 343/2023 rejecting the application filed by the petitioner for stay on
conviction awarded to him by the trial court by the judgment dated 19.07.2023 passed in
SCPPM No. 40/2018.
2. By the said judgment of conviction, total eight persons including the petitioner
have been convicted and sentenced as described in the judgment.
3. The petitioner has been convicted under Sections 147, 332 read with section
149 (on 14 counts) and Section 3 of the Prevention of Damage to Public Property Act,
1984 and sentenced to undergo RI for six months with fine of Rs. 1000/-, RI for one
year with fine of Rs.500/- (on 14 counts) total Rs. 7000/- with default stipulations
respectively. All the sentences to run concurrently.
4. Against the judgment of conviction and sentence dated 19.07.2023 the petitioner
preferred an appeal before the Appellate Court, which was registered as Criminal Appeal
No. 343/2023. In the said appeal the petitioner also filed an application under Section
389(1) of Cr.P.C. seeking stay on conviction for the reason that if the stay is not granted,
he would become disqualified as per Section 36 and 40 of the Madhya Pradesh
Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as
'Adhiniyam, 1993'). and shall be removed from the post of President, Zila Panchayat,
Rajgarh, M.P. on which he was duly elected.
5. Shri Kochar appearing for the petitioner submitted that looking to the nature of
allegation made against the petitioner and also the finding of conviction given by the trial
court after appreciating the statements of witnesses, the Appellate Court could have
exercised its power and granted stay on the conviction of the petitioner, but since the
Court rejected the application for stay on conviction by the impugned order, this Court
can exercise the inherent power provided under Section 482 of Cr.P.C. and can pass the
appropriate order setting aside the order of the appellate court staying the conviction
awarded to the petitioner.
6. The facts of the case in nutshell are that on 01.09.2009 (the date on which the
incident occurred), the petitioner was alleged to be a part of a Dharna/Pradarshan called
and staged by the members of Indian National Congress Party at Rajgarh in the office of
Collector. During the course of agitation, some unknown persons came from back of the
said Pradarshan and indulged in pelting stones, which injured the leaders of the
Dharna/Pradarshan and as a consequence of that, the persons assembled on the spot
started agitating, which resulted in breaking of glass panels of the office of Rajgarh
Collector. Thereafter, since the persons assembled on the spot created hurdle in the
government work and damaged the office of the Collector, an FIR vide Crime No.
290/2009 of the incident was lodged and after investigation, charge sheet was filed by the
police on 21.06.2010. Afterwards, criminal trial commenced, which culminated into the
judgment of conviction passed by the trial court on 19.07.2023.
7. The trial court appreciated the statement of witnesses and discussed the same in
its judgment, however from perusal of the judgment, prima-facie it transpires that none
of the witnesses has specifically pointed out and specified the role of the accused
persons including petitioner. It is also not alleged as to what has been done by the
present petitioner, but the trial court considering overall circumstances of the case,
passed the judgment of conviction.
8. Shri Kochar submitted that the incident occurred in the year 2009 that too on
account of a call of Dharna/Pradarshan by a political party before the office of Collector
Rajgarh for submitting representation. The persons assembled on the spot at that relevant
point of time damaged the government property and injured some of the government
employees as a result of which they sustained some minor injuries, but now in the year
2024, when the petitioner who is a duly elected President of Jila Panchayat, Rajgarh and
his term is ending on 29.07.2027, he has been issued a notice on 20th February, 2024 by
the Commissioner, Bhopal Division, Bhopal asking petitioner as to why proceeding under
Section 36 and 40 of the Adhiniyam, 1993 be not initiated against him. He submitted that
if conviction is not stayed, the petitioner shall be removed from the post of President, Jila
Panchayat and it would be a great and irreparable loss for the petitioner, who won the
election after duly contesting the same. He submitted that thus considering the facts and
circumstances of the case as a whole under which the incident occurred, the impugned
order of the Appellate Court rejecting the application of the petitioner for grant of stay on
conviction may be set aside and further the conviction of the petitioner may be directed
to be stayed. To validate his claim, he placed reliance upon the judgments passed by this
Court in case of Rajesh and other vs. State of M.P. (Criminal Appeal No.
8387/2023) and also in case of Smt. Sheela Kushwah and others vs. The State of
Madhya Pradesh (Criminal Appeal No. 11606/2022).
9. On the other hand, Shri Shroti submitted that considering the nature of crime
committed by the petitioner alongwith other accused persons and the fact that in the said
agitation the government property got damaged and some employees sustained minor
injuries and that the persons assembled on the spot also created hurdle in the
Government work, the petitioner is not entitled to get stay on conviction so as to save his
post of President of Zila Panchayat. He submitted that it is a settled principle of law that
the stay on conviction is given in rarest of rare cases and that power under Section 482
of Cr.P.C. should be exercised by the Court sparingly. He submitted that the High Court
in the cases of Mayank Jat and others vs. The State of Madhya Pradesh - CRA
No. 11381/2022 and Jalim Yadav & others vs. State of M.P.-CRA No. 708/2023
refused to exercise the power of grant of stay on conviction. As such, considering the
role played by the petitioner alongwith other accused persons in the alleged incident, he is
not entitled to get the said benefit.
10. Heard the arguments advanced by the learned counsel for the parties and
perused the record. Admittedly the incident occurred in the year 2009. The incident
occurred owing to a move by the workers of a political party to put their issues and
grievance before the Collector and also to submit a representation to the authority. There
were about 150-200 workers of the political party and due to sudden stampede in the said
Dharna/Pradarshan, the damage caused to the Government property and some minor
injuries sustained by the employees of the Collectorate. It is also to be noted here that the
witnesses produced by the prosecution have not specifically pointed out as to who
committed the said crime, but some of them were identified including the petitioner, as
they were present on the spot and consequently they have been convicted.
11. On carefully scanning the judgment of conviction, it is not specifically clear as
to what role played by the petitioner in the alleged incident. The incident took place in the
year 2009 and thereafter trial took almost 12 years to conclude. During trial, the petitioner
was elected as a President of Zila Panchayat, Rajgarh for a term of five years ending on
29.07.2027 and as such if stay on conviction is not granted, he shall be removed from the
post by virtue of disqualification clause as contained in Adhiniyam, 1993.
12. In case of Mayank Jat (supra), on which the learned counsel for the
respondent has placed reliance, the High Court relying upon various judgment of the
Supreme Court refused to exercise the power provided under Section 389(1) of Cr.P.C.
for the reason that Mayank Jat had criminal past in his account and the offence was
registered against him under Section 307/149 of IPC with a specific allegation of firing
gun shot and seizure of gun was also made from him, but in the present case, the nature
of crime and the role assigned to the petitioner are altogether different from the case of
Mayank Jat (supra). In the case of Jalim Yadav (supra) also the High Court refused
to exercise the power holding that the power should be exercised in exceptional
circumstances where failure to stay on conviction would lead to injustice and irreparable
consequences. In the said case the appellant was one of the aspirants for contesting the
election of Municipal Corporation for Ward Member. Merely because he was one of the
intending candidate, the court did not find the exceptional circumstance, but in the case at
Bar the petitioner is holding the post of President, Zila Panchayat, Rajgarh and if he is
removed from the post, he would suffer irreparable injury and would also suffer loss of
his political future. Thus, on juxtaposing the facts of the cases referred hereinabove by
the respondent and the facts of the present case, it can be unhesitatingly said that the
facts of the present case are distinguishable and different from the said cases.
13. However, while dealing with the matters of stay on conviction, this Court in the
case of Rajesh (supra) considering the facts and circumstances of the case granted stay
on conviction of an elected Member of Jila Panchayat considering the fact that if stay is
not granted he would be disqualified as per Section 36(1)(k) and 36(2) of the Adhiniyam,
1993. In the said case, this Court observed as under:
"14. Considering the existing factual position that the present appellant is an
elected Member of Zila Panchayat, Dhar and is a political person and if his
conviction is continued then he may not be entitled to hold the post of
Member of Zila Panchayat due to the disqualification provided under Section
36(1)(k) and Section 36(2) of the Adhiniyam, 1993 although the present
appellant in his application has not mentioned that he is also going to contest
the election and as per counsel for the appellant, only on the basis of
allegation of causing injury to the passerby Bablu for which a separate trial
was conducted in which acquittal order was passed but according to him, the
present appellant is unnecessarily being tried in the present case. In the
present crime, the role of the present appellant was very limited as he was
only part of unlawful assembly whereas his role was not there. Although Shri
Khare has placed reliance upon the legal position as has been discussed in
case of Balu Sudam (supra) but even otherwise, the said admission of the
appellant related to the crime which was tried in another trial in which accused
have been acquitted. Thus, prima facie, that legal position would not have any
impact in the present case. However, at the time of considering the
application for staying the conviction and exercising power provided under
Section 389(1) of Cr.P.C., the Court is not required to go into the merits of
the case and to observe the probability of sustaining the order passed by the
trial Court in appeal. But even otherwise, the Court can superficially examine
the fact whether it is an appropriate case in which power can be exercised or
not. As has been submitted by learned counsel for the parties that the
disqualification as has been shown in the Adhiniyam, 1993 would definitely
remove the appellant from the post but that has not been exercised so far and,
therefore, according to Shri Khare, Senior Advocate, the benefit to avoid that
situation or to nullify the disqualification, power of Section 389(1) of Cr.P.C.
cannot be exercised now, however, I am not convinced with the said
submission made by Shri Khare for the reason that though the authority has
not taken any action against the present appellant so far but existing legal
position makes him disqualify and at any time, the authority can take action
against him and asking him to leave the post because of disqualification
incurred due to the sentence awarded."
14. Similarly, in case of Smt. Sheela Kushwah (supra) this Court relying upon
several judgments of the Supreme Court and the High Court exercised the said power
provided under the Cr.P.C. In the said case the appellant was a Member of Legislative
Assembly and there was every possibility of her contesting the election in the coming
election from a very renowned political party and if conviction of two years awarded to
her was not stayed, she could be declared disqualified as per the provision of
Representation of People Act. In the said case, this Court observed as under:-
"In 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 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 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."
15. At the end, considering the facts and circumstances of the case at hand and
after analyzing the decisions rendered by the High Court relying upon the law laid down
by the Supreme Court in the cases referred herein above by the learned counsel for the
parties, in the considered opinion of this court, the power provided under Section 389(1)
of Cr.P.C. can be exercised reason being if looking to the facts and circumstances of the
case stay on conviction is not granted, the petitioner would suffer irreparable injury after
suffering the conviction for which he faced the trial for a long period of more than 12
years.
16. Consequent upon the discussion made hereinabove, this petition is allowed.
The order dated 05.02.2024 passed by the XXI Additional Sessions Judge and Special
Judge MP/MLA Bhopal in Criminal Appeal No. 343/2023 rejecting the application filed
by the petitioner for stay on conviction is hereby set aside and it is directed that the
conviction awarded to the petitioner by the trial court by the judgment dated 19.07.2023
passed in SCPPM No. 40/2018 shall remain stayed till the appeal is decided finally by the
Appellate Court.
17. Petition is allowed and disposed of.
(SANJAY DWIVEDI)
JUDGE
RAGHVENDRA
RAGHVENDRA
SHARAN
SHUKLA
2024.02.28
18:50:38 +05'30'
