The Patna High Court Single Bench, Justice Ashwani Kumar Singh, dismissed an Interlocutory Application for stay on conviction, in a Criminal Appeal preferred by Ram Naresh Rai who had incurred disqualification for being chosen as a Member of the Bihar Legislative Assembly. At the time when judgment of conviction was passed the appellant was a sitting Member of Bihar Legislative Assembly. Due to conviction recorded by the trial court, he has been disqualified to contest the election in view of the provisions prescribed under Section 8 of the Representation of People Act, 1951. He is desirous to seek a fresh mandate from the electorate and wants to contest the election for membership of the Bihar Legislative Assembly, which is due to take place shortly before the end of the year 2015.
The crime which forms the basis of his conviction occurred on 11.08.1998 in connection with the demonstration of Janta Dal before Sitamarhi Collectorate, when an agitated mob after breaking open the lock of the Collectorate’s gate, pushed the executive-magistrates and police force who had been deployed to maintain the law and order and started brick-batting. The Collector in order to disperse the unlawful assembly had ordered for firing pursuant to which two persons died. Reportedly, members of the mob were responsible for causing damage of several lakhs of rupees of the government properties, besides injuring many government officials by brick-batting. The appellant along with 14 others were convicted by Adhoc Additional Sessions Judge I, Sitamarhi, under Sections 323, 324, 333, 307/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for terms of 1 , 3, 7 and 10 years respectively in addition to a fine of Rs.38,000. The sentences have been ordered to run concurrently.
Mr. Jitendra Singh, the Senior Counsel who appeared for the appellant, contended that the trial court had completely ignored the mandatory provisions contained in Sections 273 and 276 of the Code of Criminal Procedure in conducting the trial as a result of which the entire trial stood vitiated. He alleged that the examination-in-chief of not even a single prosecution witness was recorded in presence of the accused. According to him, charges were framed separately on different dates against different sets of accused persons in three sessions trials. The three sessions trials were never clubbed right from the stage of framing of charge till recording of statements of the accused persons under Section 313 Cr.P.C. A common judgment and order of conviction and sentence was passed on 02.06.2015 and 04.06.2015 respectively by the trial court and on 02.06.2015 whereby the appellant along with other convicted accused persons was taken into custody after canceling their bail bonds. He submitted that the appellant was prejudiced by use of photocopies of the examination-in-chief of the witnesses examined in one sessions trial having been used in another sessions trial.
He also contended that by order dated 23.06.2015 the appellant’s sentence has been suspended and he has been granted bail by the High Court. He submitted that as the sentence has been suspended the failure to stay the conviction would lead to injustice and irreversible consequences to the appellant who aspires to contest the upcoming election.
He relied heavily on the decision of Navjot Singh Sidhu v. State of Punjab [(2007) 2 SCC 574],where the appellant Navjot Singh Sidhu the then sitting M.P charged under Sections 302 and 323/34 IPC in a road rage-cum-death case, was acquitted by the learned Sessions Judge, which order was challenged by the State of Punjab by filing an appeal, which was allowed and the appellant was convicted under section 304 Part-II IPC and sentenced to three years imprisonment by the Punjab and Haryana High Court for culpable homicide not amounting to murder. The conviction was suspended by the Apex Court so as to enable him contest impending election.
On the other hand, the additional public Prosecutor contended that the applicant failed to make out a case where failure to suspend the conviction would lead to injustice and irreversible consequences. He submitted a number of times the Supreme Court has cautioned that only in exceptional cases the power of suspension of conviction should be exercised. In support of his submission he placed reliance on the decision of the Supreme Court in Sanjay Dutt v. State of Maharashtra [(2009) 5 SCC 787.
Regarding the submissions made by the applicant, the court observed that, “Mr. Singh, learned Senior Counsel for the applicant, has placed reliance on the decision of the Supreme Court in Navjot Singh, but in that case, the facts were quite different. In that case, the appellant was a sitting M.P. and he could have continued as M.P. even after his conviction and sentence in view of Section 8(4) of the Act. However, he resigned and expressed his desire to contest the election. As a matter of fact, that was a case where the trial court had acquitted Navjot Singh Sidhu and in appeal against acquittal he was convicted under Section 304 Part-II IPC. Taking into consideration high moral standard set by Navjot Singh Sidhu, the Supreme Court granted stay of the order of conviction in that case.”
“In the present application, the ground on which the appellant seeks suspension of conviction is that he intends to contest the ongoing election of the Bihar Legislative Assembly. In view of the law laid down by the Supreme Court and different High Courts in the decisions, I am not inclined to suspend the conviction of the appellant merely to enable him to contest the election.”
“I make it clear that I have not expressed any opinion on the merit of the case”, the Court said.
The Supreme Court in Lily Thomas Vs. Union of India [(2013) 7 SCC 653], had declared Section 8(4) of the Representation of People Act, that guaranteed a sitting legislature stay of conviction for three months to enable him to approach the appellate court, ultra vires and struck it down. After the decision in Lily Thomas both sitting legislatures and others intending to stand for election face disqualification in terms of Section 8(1) (m) read with 8(1) (2) of the Act.
Read the Judgment here.
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