16. cr appa 1009-10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1009 OF 2010 IN CRIMINAL APPEAL NO. 1292 OF 2003 Dipak Patel .. Applicant Vs The Union Territory of Dadra & Nagar Haveli .. Respondent Mr. B.D. Joshi for the Applicant Mr. D.A. Nalawade, for Respondent No. 1 Ms. A.A. Mane, APP for the State CORAM : SMT. V.K. TAHILRAMANI, J DATE : 5th OCTOBER, 2010. P.C.: 1. Leave to amend. Amendment be carried out forthwith. 2. Heard learned counsel for the applicant-original accused no. 2, learned counsel for respondent no. 1-Union Territory of Dadra and Nagar Haveli and learned APP for the State. 3. By judgment and order dated 31.07.2003 passed in Sessions Case No. 23 of 1999, the learned Sessions Judge, Dadra and Nagar Haveli, Silvassa convicted the applicant- 1 16. cr appa 1009-10.doc original accused no. 2 under Sections 143,147,148 and 325 read with Section 149 of IPC. For the offence under Section 143, he was sentenced to imprisonment for 3 months, for the offences under Sections 147 & 148, he was sentenced to imprisonment for six months and for the offence under Section 325 read with 149, he was sentenced to imprisonment for two years. The learned Sessions Judge directed that all the substantive sentences of imprisonment shall run concurrently. The appeal preferred by the applicant against the said judgment and order is pending before this Court. The applicant has already been granted bail by this Court. Though his sentence has been suspended, by this application, the applicant has prayed for suspension of conviction. 4. The case of the applicant is that he wants to contest for District Panchayat Election. As per the programme set out by the Election Commissioner, the elections are to take place on 24th October, 2010 and the last date for submitting nomination forms is 6th October 2010 and the date for scrutiny of nomination forms is 7th October 2010, hence the urgency. A copy of the said election programme is annexed by the learned counsel for the applicant. 5. Learned counsel for the applicant has placed reliance on a decision of the Supreme Court in the case of Lalsai 2 16. cr appa 1009-10.doc Khunte Vs Nirmal Singh & Ors reported in (2007)9 SCC 330. He has placed reliance on the observations in para 11 therein wherein it is observed that: "Therefore, this Court in recent decisions held that the appellate court has power to stay the execution of the conviction and if the appellate Court has stayed the conviction then in that case, this will not operate as a disqualification. He has also placed reliance on a decision of the Supreme Court in the case of Ravikant S. Patil Vs Sarvabhouma S Bagali reported in (2007) 1 SCC 673 : (2007) 1 SCC (Cri) 417 wherein it is held that the Court has enough power to stay the conviction. In para 15 of the said decision, it is observed as under: "15. 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. 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 3 16. cr appa 1009-10.doc contest the election. The High Court after considering the special reason, granted the order 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." 6. Reliance is also placed on a decision of the Supreme Court in the case of Navjot Singh Sidhu Vs State of Punjab reported in (2007)2 SCC 574 : (2007) 1 SCC (Cri) 627 wherein also stay to the order of conviction as well as sentence was granted. 7. On the other hand, learned counsel for respondent no. 1 has placed reliance on a decision of the Supreme Court in the case of Sanjay Dutt Vs State of Maharashtra reported in 2009(2) Bom.C.R.(Cri) 401. He pointed out that in the said case also, the petitioner wanted to contest the election, hence, he had sought suspension of conviction. He pointed out that despite many favourable circumstances in favour of the petitioner therein, the Supreme Court did not grant suspension of conviction. He pointed out the observations in para 6 therein which reads as under: "The petitioner is a well-known cine artist and because of his contribution to art and cinema he has got large number of fans throughout the country and 4 16. cr appa 1009-10.doc abroad. His father was also a well-known film action and he was deeply involved in politics. At one point of time, petitioner's father was Minister in the Union Cabinet. The petitioner is not a habitual criminal nor it has been brought to our notice that he had involved in any other criminal case. Despite all these favourable circumstances, we do not think that this is a fit case where conviction and sentence could be suspended so that the bar under Section 8(3) of the Representation of People Act 1951 will not operate against the petitioner." 8. I have carefully perused the decision in Sanjay Dutt (Supra). In the said case, the Supreme Court has observed that "In view of the serious offence for which he has been convicted by the Special Judge, we are not inclined to suspend the conviction and sentence awarded by the Special Judge in the present case." In the said case, the petitioner was charged under TADA and Arms Act, hence, it was, under those circumstances that the observations came to be made by the Supreme Court. However, in the present case, the applicant has been convicted only for offences under IPC and the main office is under Section 325 of IPC. 9. Thereupon, Mr. Nalawade placed reliance on a decision of this Court in case of Mahadev Rangnath Barde Vs State of Maharashtra reported in CDJ 2002 BHC 028. He pointed out 5 16. cr appa 1009-10.doc that in the said case also, the applicant had sought suspension of conviction in order to enable him to contest the election of Panchayat Samiti. The said application came to be rejected. While rejecting the said application, it was observed as under: "9. Such a conduct of a person holding the post of Sarpanch does not entitle him to the relief of suspension of conviction. The facts of the case further shows that the road through the complainants field was granted by the Tehsildar therefore there was no reason for the accused to go to the extent of forming an unlawful assembly and causing injuries to number of persons. This accused himself has assaulted all the victims. I do not find this to be a fit case to grant relief prayed for. Hence, prayer for suspension of conviction is rejected. Criminal application disposed of." 10. I have perused the decision in the case of Mahadev Barde. Evidence in the said case showed that Mahadev Barde had assaulted the complainant-Vishnu Gangurde by means of an axe. He had also assaulted one Hiraman by means of axe on his head. In the said incident, large number of persons were injured. Even lady members of the complainant's family i.e his wife and daughter were forcibly dragged while the assault was being caused. Thus, as the evidence in the said case showed that the accused was carrying an axe and he had himself assaulted two persons with the said axe, looking to 6 16. cr appa 1009-10.doc the nature of incident, this Court had observed that said conduct of a person holding the post of Sarpanch does not entitle him to the relief of suspension of conviction. 11. As far as the facts in the present case are concerned, there is only one injured person i.e Gangaram Raut. He is the only person who has deposed about the incident. The incident had occurred at about 07.00 p.m. in the Chowk at Khadoli. Though the incident took place in the chowk, no other person has been examined to corroborate the case of Gangaram Raut. Gangaram Raut has stated that in all there were seven persons and they have assaulted him. However,he has not attributed any specific role to the present applicant nor has Gangaram specifically stated that the applicant was carrying any weapon and that the applicant assaulted him with the said weapon. The evidence of Gangaram is very vague and general in nature and it is not such as to inspire confidence. All the injuries sustained by the Gangram were simple in nature except one injury on the leg which was a fracture. Gangaram has not attributed that injury to the present applicant. PW 4 Doctor Shinde has admitted that the injuries sustained by Gangaram would also be possible if he was traveling by motorcycle and the motorcycle met with an accident. 7 16. cr appa 1009-10.doc 12. It is pertinent to note that the case of Gangaram is that he was assaulted by seven persons who were armed with various weapons. Yet, it is surprising to note that despite being assaulted by seven persons who were armed with weapons, he had sustained only simple injuries except the injury on the leg, this prima facie appears a little implausible. Moreover, the injury on the leg is not attributed to the applicant. It is also to be noted that there was rivalry in between Gangaram and the accused persons. Though the incident had occurred on 29th May 1998, the FIR came to be lodged only on the next day after 10.00 a.m. No explanation has been furnished by Gangaram for delay in lodging the FIR. Looking to all these facts, the case of the prosecution, does appear to be suspect. Moreover, it is to be noted that the applicant has been convicted under Section 325 with the aid of Section 149 of IPC. 13. Thus, in view of the above facts , I am inclined to allow the application in terms of prayer clause (a). Accordingly, application is allowed in terms of prayer clause (a). 14. Application disposed of. [SMT. V.K. TAHILRAMANI, J.] 8 16. cr appa 1009-10.doc 9