G. P. Mathur, J. - (1.) The appellant-Navjot Singh Sidhu along with co-accused-Rupinder Singh Sandhu was tried for charges under S. 302, I.P.C. and S. 323 read with S. 34, IPC, but was acquitted by the learned Sessions Judge, Patiala, by the judgment and order dated 22-9-1999 which order was challenged by the State of Punjab by filing an appeal in the High Court which has been allowed and the appellant has been convicted under S.304, Part II, I.P.C. and has been sentenced to 3 years R.I. and a fine of rupees one lakh. The co-accused-Rupinder Singh Sandhu has also been convicted under S. 304, Part II read with S. 34, I.P.C. and has been sentenced to 3 years R.I. and a fine of rupees one lakh. He has further been convicted under S. 323, I.P.C. and has been sentenced to 3 months R.I. The appellant filed special leave petition in this Court in which leave has been granted on 12-1-2007 and he has been released on bail and thus the execution of the sentence imposed upon him has been suspended. The appellant also moved an application for suspending the order of conviction passed against him by the High Court on which notice was issued to the State of Punjab and the said application is being disposed of by the present order.
(2.) The circumstances leading to the filing of the application for suspension of order of conviction need to be noticed. The appellant was a sitting Member of Parliament. Immediately after the pronouncement of judgment by the High Court, he resigned from the membership of the Lok Sabha. It is stated in the application that for maintaining probity and moral values in public life he resigned from the membership of the Lok Sabha after his conviction. However, he wants to remain in public life and, therefore, wants to contest the election again and face the electorate in the changed scenario. The reason for seeking a stay or suspension of order of conviction arises on account of S. 8(3) of the Representation of the People Act, 1951 (hereinafter referred to as "the Act") by operation of which he has incurred a disqualification for being chosen as, and for being, a member of either House of Parliament. Section 7(b) and sub-sections (3) and (4) of S. 8 of the Representation of the People Act, 1951, which have a bearing on controversy in hand read as under :- "7(b) "disqualified" means disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State." "8(3) A person convicted of any offence and sentenced to imprisonment for not less than two years (other than any offence referred to in sub-section (1) or sub-sction (2)) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. (4) Notwithstanding anything in sub-section (1), sub-section (2) and sub-section (3) a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the Court." By virtue of sub-section (3) of S.8 of the Act the appellant incurred the disqualification as he has been sentenced to 3 years R.I. Sub-section (4) of S. 8 provides that if on the date of the conviction, a person is a Member of the Parliament then notwithstanding anything in sub-section (3), the disqualification mentioned therein shall not take effect until 3 months have elapsed from the date of order of conviction and if within that period an appeal is brought in respect of the conviction or sentence, until that appeal or application is disposed of by the Court. This provision has been interpreted by a Constitution Bench in K. Prabhakaran v. P. Jayarajan (2005) 1 SCC 754 and it has been held that the protection against disqualification will be available only till the current life of the House (Parliament or the Legislature of a State) and the person continues to be a member of a House, and not thereafter. Since the appellant was a sitting Member of Parliament, he would not have incurred the disqualification as provided in sub-section (3) of S. 8 of the Act, for a period of 3 months and if within that period he had filed an appeal until the decision of the appeal. Therefore, the appellant could have easily avoided the incurring of the disqualification by filing an appeal within three months from the date of his conviction by the High Court. However, he chose to resign from the membership of the Lok Sabha soon after he was convicted by the High Court and wants to seek a fresh mandate by contesting the election.
(3.) 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 S. 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 orn 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 and others (1995) 2 SCC 513 and Ahmadi, C.J., speaking for the Court, held as under (para 19 of the reports) :- "19. That takes us to the question whether the scope of S. 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 S. 267 of the Companies Act, we see no reason why we should give a narrow meaning to S. 389(1) of the Code to debar the Court from granting an order to that effect in a fit case. The appeal under S. 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 S. 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 S. 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 S.482 of the Code if the power was not to be found in S. 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 S. 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 S. 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." The aforesaid view has recently been reiterated and followed by another three-Judge Bench in Ravi Kant S. Patil v. Sarvabhouma S. Bagali, 2006 (1) JT (SC) 578. After referring to the decisions on the issue, viz., State of Tamil Nadu v. A. Jaganathan (1996) 5 SCC 329; K. C. Sareen v. C.B.I., Chandigarh (2001) 6 SCC 584; B. R. Kapur v. State of T.N. and another (2001) 7 SCC 231 and State of Maharashtra v. Gajanan and another (2003) 12 SCC 432, this Court concluded (para12.5 of the report) : "All these decisions, while recognising 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." The Court also observed :- "11. 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. . . . . . . . ." 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.;