1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. CRIMINAL APPLICATION NO. 3159 OF 2009. IN CRIMINAL APPEAL NO.66 OF 2005. Gazi Saduddin @ Pappu S/o Gazi Zaheer ...Applicant VERSUS The State of Maharashtra. ...Respondent ------------------------------------------ Mr. A.H.Kapadia,Advocate for applicant. Mr. A.P.P. for respondent. ------------------------------------------ (CORAM : R.M.BORDE, J ) DATE : 25TH September,2009. PER COURT : 1. Heard Mr. A.H.Kapadia, learned counsel appearing for the applicant. 2. This is an application seeking stay to the conviction, as the applicant desires to contest the election of Legislative Assembly. The applicant is held guilty for commission of offence punishable under section 148 of the Indian Penal Code alongwith two other accused, and he is sentenced to suffer rigorous imprisonment for a period of one year and to pay a fine of Rs.500/-, in default to undergo further rigorous imprisonment for three months. The applicant alongwith two other accused also have been held guilty for commission of offence punishable under section 307 read with section 149 of the Indian Penal code and he is sentenced to suffer rigorous imprisonment 2 for a term of five years and to pay a fine of Rs.2000/-, in default to undergo further rigorous imprisonment for one year. The applicant/accused alongwith two other accused is further convicted for commission of offence punishable under section 326 read with section 149 of the Indian Penal Code and he is sentenced to suffer rigorous imprisonment for a term of three years and to pay fine of Rs.1000/-, in default to undergo further rigorous imprisonment for six months. The applicant/accused alongwith two other accused is further convicted for commission of offence punishable under section 427 read with section 149 of the Indian Penal Code and he is sentenced to suffer rigorous imprisonment for a term of one year and to pay a fine of Rs.500/-, in default to undergo further rigorous imprisonment for three months. The judgment and order of conviction and sentence has been pronounced by IVth Adhoc Additional Sessions Judge, Aurangabad in Sessions Trial No.12 of 2004, on 20.01.2005. On presentation of this appeal, the order passed by the Trial Judge in respect of imposition of the substantive sentence of imprisonment has been suspended and accused is directed to be released on bail. It is contended by the Counsel appearing for the applicant that, applicant/accused is a Councillor of Municipal Corporation Aurangabad. There are no antecedents involving the applicant/accused in such crime. Thus, it is contended that past record of the applicant is clear. It is also contended that he has been falsely implicated in the crime. 3. On perusal of record, it would transpire that applicant/accused is held guilty of the offence, as alleged against him. It is also further contended that the applicant is desirous of contesting the election of the Legislative Assembly from the Aurangabad Legislative 3 Assembly (West) constituency, as followers, supporters, and member of political parties and organizations,prevailed over him for contesting the election. The recommendation letters by such organization, or groups and parties are placed on record. 4. I have perused the record, however, I find it difficult to accept the contention raised by the applicant/accused and to suspend order of conviction imposed as against him, for following reasons. 5. As per the prosecution version, in the night of 17th and 18th February, 2001 the complainant had gone to Lotakaranja area, in Aurangabad. When at about 12.30 P.M., he started proceeding towards home, he had thought that, he should contact the accused no.1 and ask him for returning Rs.25,000/-, which was paid by him for securing the contract, floated by the Municipal Council. It transpired that applicant/accused No.1 herein was the sitting Councillor of the Municipal Corporation. While proceeding towards his residence, the complainant found some other persons alongwith the applicant/accused near one Charminar Backery. Complainant demanded amount from the applicant/accused. Thereafter, applicant/accused hurled abuses and companion of the applicant/accused alongwith him beat the complainant by means of sword,sticks and iron bar. Complainant sustained severe injuries and collapsed. He was rushed to Government Hospital, where he was treated for the injuries sustained by him. 6. The prosecution in order to prove the guilt, examined the complainant, who had sustained injuries, at the hands of applicant/accused and his companion. The 4 evidence of the complainant is supported by medical version. The learned counsel appearing for the applicant has invited my attention to the evidence of the Medical officer P.W.5 Dr. Sureshchandra Chavan. It is pointed out that the Medical Officer has not stated that any injury was sustained by the complainant on his head. The witness has deposed about the injuries sustained on the hands,legs and lumber area. The act attributed to the accused is in respect of inflicting blow with the help of sword on the head of the complainant. However, on consideration of evidence of P.W.8 Dr.Anil Dhule, it transpire that complainant has sustained injuries on scalp and there for further investigation X-ray examination of the complainant was conducted by the Medical Officer. In this view of the matter, it can not be said at this stage that, there is absolutely no material to connect the accused with alleged incident. The complainant, who is injured witness, has himself deposed before the court and has stated about the injuries sustained by him, at the hands of applicant/accused and his companions. Prima facie, in view of these circumstances, I do not find that, the order of imposition of conviction needs to be suspended. The learned counsel appearing for the applicant invited my attention to judgment of the Apex Court in the matter of Sanjay Datta Vs. State of Maharashtra Through CBI Bombay reported in 2009(2) Supreme Court,744. The Apex court dealing with matter in paragraph No. 6 of the Judgment, which reads as - Law prohibits any person who has been convicted of any offence and sentenced to imprisonment for not less than two years from contesting the election and such person shall be disqualified for a further period of six years since his release. In 5 the face of such a provision, the power of the Court under section 389 of Cr.P.C. shall be exercised only under exceptional circumstances. The learned Counsel appearing for the petitioner has placed reliance on the decision of this court in Navojot Singh Sidhu’s case (Supra). But in that case, the petitioner was a sitting MP and he could have continued as an MP even after his conviction and sentence in view of section 8(4) of the Representation of People Act, 1951. In the instant matter, I do not find existence of exceptional circumstance for exercising discretion in favour of the applicant. 7. For the reasons stated above, I am of the considered view that the application for staying conviction of the applicant deserves rejection. Hence, the application stands rejected. 8. The observations made in this order are prima facie in nature. It is needless to mention that while dealing with appeal on its own merit, these observations shall not be taken into account. ( R.M.BORDE, J ) MTK/cri.3159.09