[2009] 5 S.C.R. 188

SANJAYDUTT I"

\I.

STATE OF MAHARASHTRA TR. CBI, BOMBAY

IN Crl. M.P. Nos. 4087, 5229, 5230, 5237 & 5314 of 2009.

B (Criminal Appeal No. 1060 of 2007)

MARCH 31, 2009

[K.G. 8ALAKRISHNAN, CJI, P. SATHASIVAM AND R.M.

LODHA, JJ.] c

CODE OF CRIMINAL PROCEDURE, 1973:

s.389 - Suspension of conviction and sentence pending appeal - Accused acquitted of offences punishable under

D Terrorist and Disruptive Activities (Prevention) Act, 1987 but convicted of offences punishable u/ss 3 and 7 r/w ss.25(1A) ,,_' and 25(1 B) of Arms Act and sentenced to six years RI by designated court - Pending appeal before Supreme Court, accused granted bail - Prayer for suspension of conviction and sentence pending appeal - Held: In view of the serious E offences for which the accused was convicted, Court declined to suspend the conviction and the sentence - Keeping in view the bar uls 8(3) of the 1951 Act, power of court uls 389 CrPC would be exercised only under exceptional circumstances - Representation of the People Act, 1951 - s.8(3).

F The petitioner faced trial for commission of offences ' punishable u/ss.3(3), 5 and 6 of Terrorist and Disruptive Activities (Prevention) Act, 1987 and u/ss 3, 7 r/w ss.25(1A) and 25(18) of Arms Act, 1959. He was found

G guilty of offences punishable u/ss 3 and 7 r/w ss. 25(1A) and 25(18) of the Arms Act. and was sentenced to six years rigorous imprisonment He filed an appeal before

' the Supreme Court and pending appeal he was granted ' bail. The petitioner filed Crl.M.P .No.4087 of 2009 u/s 389

H of the Code of Criminal Procedure, 1973 praying that 188

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SANJAY DUTI v. STATE OF MAHARASHTRA TR. CBI, 189

BOMBAY

execution of order of conviction and sentence be also A suspended pending appeal as he was desirous of contesting the Lok Sabha elections. The other petitions were also filed in the matter.

Dismissing the petitions, the Court B

HELD: 1.1. The petitioner has been convicted of serious offences. Of course, his conviction and sentence have been challenged before this Court in an appeal. The petitioner is a well-known cine artist and because of his contribution to art and cinema he has got large number C of fans throughout the country and abroad. The petitioner is not a habitual criminal nor has it been brought to the notice of the Court that he was involved in any other criminal case. Despite all these favourable circumstances, this is not a fit case where conviction and D sentence could be suspended so that the bar u/s 8(3) of the Representation of the People Act, 1951 will not operate against the petitioner. [Para 6] [193-C-F]

1.2. Law prohibits any person who has been E 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 the face of such a provision, the power of the Court u/s 389 Cr.P.C. shall be exercised only under exceptional circumstances. [Para 6]

[193-G-H]

1.3. In view of the serious offence of which the petitioner has been convicted by the Special Judge, this Court is not inclined to suspend the conviction and G sentence awarded by the Special Judge. [Para 8] [194-D]

Navjot Singh Sidhu vs. State of Punjab & Anr. (2007) 2 sec 574, distinguished.

Pmkash Kumar vs. State of Gujarat (2005) 2 SCC 409 H

A a?d Rama Narang vs. Ramesh Narang (1995) 2 SCC 513,

cited.

Case Law Reference:

(2001) 2 sec 57 4

(2005) 2 sec 409

(1995) 2 sec 513

distinguished

cited

cited

Para 4

Para 4

Para 4

CRIMINAL APPELLATE JURISDICTION : Crl.M.Nos. c 4087, 5229, 5230, 5237 & 5314 of 2009 Criminal Appeal No.

1060 of 2007.

From the Judgment 8, Order dated 31.07.2007 of the D Designated Court Greater Bombay, Maharashtra in Bomb

Blast Case No. 1/1993.

Gopal Subramanium, ASG, Harish N. Salve, Mukul Rohtagi, Soli J. Sorabjee, K.T.S. Tulsi, Ranjit Kumar, Kanak Raj, E Mukul Rohtagi, Ankur Chawla, Gaurav Bhatia, Minakshi, Hari Shankar K. Harshvardhan Jha, Vikas Singh, Ashish Jha, Alok Saran, R.S. Massy Verma (for T.N. Rao), Manoj Saxena, Rahul Shukla, Sunil Fernandes, P.V. Yogeswaran, Rajat Jariwal, Prashant Bhushan, Rohit Kumar Singh, Karan Singh, Hari F Shankar K. Vikas Singh, Jangra, Satya Kam, Raghenth Basant (for B.K. Prasad) for the appearing parties.

The Judgment of the Court was delivered by

K.G. BALAKRISHNAN, CJI. 1. The petitioner herein, the G 117th accused in Special Case No. 1/93 (Bombay Blast Case) before the Special Judge, TADA (Mumbai), was charged under various Sections of Terrorist and Disruptive Activities (Prevention) Act (TADA) such as Section 3(3), Section 5 and Section 6 and also for the offence under Section 3 and Section

SANJAY oun V. STATE OF MAHARASHTRA TR. CBI, 191

- '

BOMBAY [K.G. BALAKRISHNAN, CJI.] ,

7 read with Sections 25(1A) and 25(1B) of the Arms Act, 1959.

A The petitioner was found guilty of offences punishable under Section 3 and Section 7 read with Sections 25(1A) and 25(1B) of the Arms Act and was sentenced to six years rigorous imprisonment. The petitioner has filed appeal against his -_,,_ conviction and sentence and that appeal is pending B consideration before this Court. Pending consideration of that appeal, the petitioner was granted bail on 28.2.2007.

2. Crl, M.P. No. 4087 of 2009 has been filed by the petitioner under Section 389 of the Code of Criminal c Procedure, 1973 (Cr.P.C.) praying that execution of the order of conviction and sentence be suspended pending final hearing of the appeal. In the petition it is stated that he belongs to a family which has been in long public service in the country and . the petitioner is now desirous of contesting election to the D

-·-I House of People from Lucknow Parliament Constituency and in view of Section 8(3) of the Representation of People Act, 1951, he has incurred disqualification from contesting the election for becoming a member of either House of Parliament.

Therefore, it is prayed that the conviction and sentence of the petitioner be suspended to enable him to contest the election.

3. We have heard Shri Harish N. Salve, learned senior counsel, appearing for the petitioner and Shri Gopal Subramanium, learned Additional Solicitor General of India, .. ; appearing for the Central Bureau of Investigation (CBI) F opposing the petition. Some third parties have also filed intervention applications. These parties were given opportunity to address their arguments even though we have not allowed any of these intervention applications as it is a Criminal Miscellaneous Petition.

_..,

4. The learned counsel appearing for the petitioner drew 'f our attention to the extracts of the judgment passed by the learned Special Judge and elaborately argued that the petitioner was not part of the criminal conspiracy charged against him. He has been acquitted by the Special Judge for H

A the offence under Sections 3 and 5 of the TADA and no appeal

has been filed against that by the State and the conviction is only under Sections 3 and 7 read with Sections 25(1A) and 25( 1 B) of the Arms Act. It was argued that the conviction itself for the above offences are based on alleged confession made B by the petitioner which was not strictly admissible under the law.

It was also contended that the alleged possession of the weapon by the petitioner was much prior to the criminal conspiracy allegedly hatched by other accused. The learned counsel for the petitioner also drew our attention to the fact that c though under Section 12 of the TADA the Designated Court, when trying any offence, was competent to try any other offence with which the accused may, under Cr.P.C., be charged at the same trial if the offence is connected with such other offence.

It was argued that the finding of the Designated Court would D show that offence, if any, allegedly found against the petitioner was not even connected with other offences for which other accused were charged and, in that event, Section 15 of the TADA itself would not be attracted and the confession allegedly made by the petitioner to the police officer was not admissible.

The learned counsel further argued that some of the E observations made by the Constitution Bench of this Court in Prakash Kumar vs. State of Gujarat, (2005) 2 SCC 409, require slight clarification. The learned counsel further pointed out that the petitioner has got fair chance of appeal filed by him being allowed and, if the conviction and sentence is not F suspended, he would be seriously prejudiced. He placed

reliance on the decisions of this Court in Navjot Singh Sidhu vs. State of Punjab & Anr., (2007) 2 SCC 574, and Rama Narang vs. Ramesh Narang, (1995) 2 SCC 513.

5. The learned Additional Solicitor General appearing for the CBI contended that the conviction and sentence could be suspended only in exceptional circumstances and the petitioner in this case is not entitled to any such relief in view of the serious crime allegedly committed by him. It was argued that H under Section 8(3) of the Representation of People Act, 1951,

( -

SANJAY DUTT v. STATE OF MAHARASHTRA TR. CBI, 193 '. f

BOMBAY [K.G. BALAKRISHNAN, CJI.] _. - any person who has been convicted of any offence and A sentenced to imprisonment for not less than two years, except any offence referred to in sub-section (1) or sub-section (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. Therefore, it is argued, when there is an express B • prohibition of law from contesting the election, the relief prayed for by the petitioner may not be accepted in the facts and circumstances of the present case.

6. We have carefully considered the contentions advanced c by the petitioner. The petitioner has been convicted for serious offences. Of course, his conviction and sentence have been challenged before this Court in an appeal. Though our attention was draw11 to the various findings recorded by the Special

( Judge and also the nature of evidence adduced by the

~~ prosecution, we do not propose to consider these facts at this D

stage as it may seriously prejudice either of the parties when the appeal filed by the petitioner is considered by this Court.

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 abroad. His father was also a well- E

_,, known film actor 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 F 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. Law prohibits any person who has been convicted of any offence and sentenced to imprisonment for not less than G two years from contesting the election and such person shall be disqualified for a further period of six years since his release.

--< In the face of such a provision, the power of the Court under Section 389 Cr.P.C. shall be exercised only under exceptional circumstances.

7. The learned counsel appearing for the petitioner has placed reliance on the decision of this Court in Navjot 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 B Representation of People Act, 1951. The petitioner in Navjot ~--

Singh Sidhu's case (supra) resigned and expressed his desire to contest the election. In fact, that was a case where the trial court acquitted the petitioner and the High Court, in reversal, found the petitioner guilty. It was in those circumstances this c Court granted stay of the order of conviction and sentence in that case.

8. In the present case, no such circumstances are in favour of the petitioner. In view of the serious offence for which he has

D 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. We make it clear that we do not express any opinion on the merit and, if any of the observations made in this order, even it has remote possibility to prejudice either parties, we state that the same is only made for the E purpose of disposal of Cr.M.P. No. 4087 of 2009-application

for suspension/stay of conviction.

9. In the result, Cr.M.P. Nos. 4087/2009, 522912009, 5230/ 2009, 5237/2009 and 5314/2009 are dismissed .

F •

RP.

Criminal Misc. Petitions dismissed.