NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined (PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)

1. This appeal under Clause 15 of the Letters Patent challenges the oral order dated 22.09.2023 passed by the learned Single Judge.

The appellant was the original petitioner who had filed the petition with a prayer to quash and set aside the order dated 01.07.2022 passed by the State dismissing the petitioner from service.

The learned Single Judge dismissed the petition.

Hence, the appeal.

2. Facts in brief are as under:

Criminal Appeal No.893 of 2014 which is admitted and pending before this Court. An order dated 17.07.2017 has been passed in Criminal Misc. Application No.10694 of 2014 in the Criminal Appeal to which we will extensively refer to hereinafter as that order is the root Page 3 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined cause of the controversy involved in this appeal.

2.4 On the basis of conviction by the judgement dated 05.07.2014, the Collector, Bhuj, issued a show cause notice dated 07.08.2014, asking the petitioner to show cause as to why the petitioner should not be imposed a major penalty in light of this conviction. The petitioner replied to the notice on 20.08.2014 along with a copy of the order of the High Court dated 17.07.2014 in the Misc. Application, informing the authority that since in the appeal before the High Court, the judgement and order of the Bhuj Court is under suspension, the petitioner cannot be visited with any penalty as the judgement of the Criminal Court was stayed.

2.5 Seven years after the reply filed by the petitioner, on 05.01.2022, a show-cause notice Page 4 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined was again issued to the petitioner asking the petitioner to show cause as to why by virtue of Rule 14(1)(1) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971, why should the petitioner not be inflicted with the major penalty. The petitioner responded by a letter dated 21.01.2022 informing the Collector that in the Criminal Appeal filed by the petitioner, the Court had suspended the judgement till the final hearing and disposal of the appeal and therefore, no penalty can be imposed.

2.6 By the impugned order dated 01.07.2022, after quoting the order of the High Court in appeal, the State dismissed the petitioner from service holding that the order in appeal was only an order suspending the sentence and as the conviction was not stayed, it being operative would result in dismissal from service.

NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined 2.7 As pointed out, the learned Single Judge having dismissed the petition, holding the order to be just and proper, this appeal.

3. Mr.K.B.Pujara learned counsel for the appellant would make the following submissions:

NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined 3.2 Mr.Pujara would submit that the order dated 01.07.2022, even the show cause notice of early 2014 suffered from total non-application of mind. Without referring to the pending appeal and the order dated 17.07.2014, the authorities had proceeded to pass an order of dismissal when the judgement and order of the Trial Court was stayed and the conviction had become non-

3.3 Mr.Pujara would submit that if the order dated 01.07.2022 is read it refers to two circulars dated 05.08.2003 and 05.12.2005 which were not applicable at all. Referring to the circular dated 05.08.2003, Mr.Pujara would submit that the circular categorically clarified that if there is a suspension of sentence in appeal before the higher Court, then mere pendency of appeal could not prevent the authorities from Page 7 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined passing an order of dismissal in accordance with the provisions of Rule 14 of the Discipline and Appeal Rules. The Circular was clearly inapplicable as in the appeal before this Court in context of the appellant, it was not the sentence which was suspended but the whole judgement was stayed which would mean that even the conviction was inoperative.

3.4 Even the circular dated 05.12.2005 was in context of dismissal or removal of the Government Employees convicted by a Court.

The same was issued in light of the judgement and order dated 19.07.2005 in Special Civil Application No.14805 of 2005 which noted that unless conviction is stayed, it is open for the authorities to pass an order of dismissal. He would submit that it is not open for the authorities to interpret the order dated Page 8 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined 17.07.2014, when the only interpretation on reading the order is that in light of the judgement being suspended, the conviction was non-operative. The order therefore was bad.

3.5 Mr.Pujara would submit that as long as the order dated 17.07.2014 stays, there was reason to believe that no action can be taken. The order dated 17.07.2014 has to be read as it is and while passing an order of dismissal, it was not open for the authorities to examine the legality of order in the criminal application.

3.6 Placing reliance on the decision in the case of K.C.Sareen v. CBI, Chandigarh reported in 2001 (6) SCC 584 Mr.Pujara would submit that true it is that stay of conviction has to be in rare cases, but what is apparent from reading of the judgement is that once the conviction is stayed, it Page 9 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined would become non-operative. He would also rely on a decision of the Supreme Court in the case of Ravikant S. Patil v. SARVABHOUMA S. Bagali reported in 2007 (1) SCC 673 and submit that effect of stay of conviction from the date of the stay would render the order of conviction non-operative and consequently the disqualification arising out of conviction would also cease to operate.

3.7 Relying on a decision of the Division Bench of this Court in case of Mansukhbhai Bhalabhai Oza v. State of Gujarat reported in 2023 (4) GLH 153 Shri Pujara would submit and reiterate that if the conviction itself is stayed, it will not be effective and the disciplinary authority is duty-bound to keep in mind such order before passing any order of dismissal. The only interpretation while reading Page 10 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined the order dated 17.07.2014 in Criminal Misc.

Application was that the judgement and order was suspended and therefore, the impugned order of dismissal cannot be sustained as not only did it suffer from total non-application of mind, but amounting to overreaching the Court process. Since the order suspended the judgement of the Trial Court, consequences flowing from such conviction could not have happened.

3.8 Mr.Pujara also relies on the decision in case of Shree Chamundimopeds Limited v.

Church of South India Trust Association Csicinod Secretariat, Madras reported in 1992 (0) AIJEL-SC 26493

4. Mr.Rohan Shah learned Assistant Government Pleader would make the following submissions:

Mr.Shah would submit that if the order dated 17.07.2014 passed in the criminal application is read as a whole, it was unequivocally clear that the order was only suspending the sentence and not staying the conviction. If that be so, the authority was within its right to pass the order of dismissal.

4.2 Mr.Shah could not dispute the propositions of law laid down by the Supreme Court in case of K.C.Sareen (supra) and Ravikant Patil (supra), however, he would submit that conviction has to be stayed in the rarest of rare cases and an order of conviction can be executable if the attention of Page 12 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined the appellate Court is not invited to the consequences that will follow and the appellate Court has not assigned any reasons which it should in staying the conviction, the reading of the order in the criminal application can only mean that the order being one without reasons and looking to the shortness of the sentence could only mean that it was the sentence which was suspended without the conviction being stayed.

4.3 Relying on the decision of the Supreme Court in the case of Banshi Dhar v. State of Rajasthan and Another reported in 2007 (1) SCC 324. He would submit that on allegations of corruption, no indulgence can be given to an employer.

4.4 He would also rely on a decision of the Page 13 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined Supreme Court in case of Central Bureau of Investigation, New Delhi v. Roshan Lal Saini reported in 2012 (12) SCC 390 that in absence of reasons in the order of the criminal application, it cannot be said that conviction can be stayed.

4.5 He would also rely on a decision of the Supreme Court in case of Union of India v.

ATAR SINGH AND Another reported in 2003 (12) SCC 434 to submit that the High Court cannot mechanically pass the order staying conviction.

4.6 Mr.Shah would therefore submit that no fault can be found in the order of the learned Single Judge when in the criminal application, which only suspended the sentence and there was no stay of conviction as argued by the Page 14 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined learned counsel for the appellant. That being the position, the authorities were justified in passing the order of dismissal and therefore the order of the learned Single Judge was just and proper and the Letters Patent Appeal deserved to be dismissed.

5. Having considered the submissions made by the learned counsels for the respective parties, the bone of contention that would need to be resolved is whether the order dated 17.07.2014 passed in the Criminal Appeal, on an application under Section 389 of the Code of Criminal Procedure is an order staying the suspending the suspension of sentence or also one that stays the conviction. The order dated 17.07.2014 passed in Criminal Misc. Application No.10694 of 2014 in Criminal Appeal No.893 of 2014 reads as under:

NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined

5. Ms.Punani, learned Additional Public Prosecutor does not invite any further reasons. The application is allowed. Rule made absolute accordingly. Direct Service is permitted."

5.1 The order was passed on an application made under Section 389 of the CRPC. We had called for the papers of the Criminal Misc.

Application for perusal. The application filed was titled as "Application under Section 389 of Cr.P.C. for suspension of sentence and bail pending the Criminal appeal."

5.2 When the contents of the application are examined, it was the case of the petitioner that the petitioner has been convicted and ordered to undergo simple imprisonment of two years and six months. The application has been filed for stay of conviction and bail pending the appeal for the reasons stated therein. The memo reads as under:

Therefore, it is submitted that present case is one where all are the chances are that the conviction will be over turned into acquittal of the appellant and therefore, during the pendency of the appeal, the conviction is required to be stayed.

5. The impugned judgement and order convicts the appellant for two years and six months in all. The appellant would also be eligible for some remission and other benefits. Therefore, if he is not released on bail during the pendency of appeal, the period of sentence would be over looking at the number of cases pending with the Hon'ble Court. He has got movable and Page 18 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined immovable properties at his village. There are no chances of violation of liberty if this Hon'ble Court considers bail for him.

6. That the applicant was on bail during the trial and no untoward incident has happened. He has obeyed the liberty granted to him by the Trial Court pending the case and he is on bail even after the impugned judgement and order. A copy of the order dated 05/07/2014 granting bail to the appellant for 30 days with a view to approach this Hon'ble Court by way of the present appeal is annexed at Annexure -A.

7. That the applicant is aged about 42 and has 16 years of service left, which is substantial. After the incident in question, he is continued in his work and no untoward incident has happened of any type.

8. According to the authority of the Hon'ble Apex Court in the case of Kirankumar Vs. State of M.P. reported at 2002 SCC (Cri) 1017 and the case of Bhagwan Rama Shinde Gosai Vs. State of Gujarat reported in 1999 (4) SCC 421. the applicants are required to be released on bail during the pendency of the appeal. The exceptional reasons as narrated in the said authority are not available in the present case. It can be safely presumed that the release of the present applicant on bail would not be harmful to the society during the pendency of the appeal. Even as such, this is the first time that any case was registered against the applicant and she does not have criminal Page 19 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined antecedents whatsoever.

8A. The appellant has not filed any other application or appeal before this Hon'ble Court or any other court including the Hon'ble Supreme Court of India on the same subject matter.

9. In the circumstances, the applicant prays that:

5.3 Section 389 of the Code of Criminal Procedure reads as under:

Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release;

Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.

(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by convicted person to a Court subordinate thereto.

(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall;

(i) where such person, being on bail, Page 21 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined is sentenced to imprisonment for a term not exceeding three years, or

(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under Sub-Section (1), and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.

5.4 The title of the Section reads "Suspension of Sentence pending the appeal, release of appellant on bail". Sub-section (1) provides 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 Page 22 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined sentence or order appealed against be suspended and also, if he is in confinement, that he be released on bail. Therefore, reading of Section 389 of the Criminal Procedure Code indicates that pending an appeal by a convicted person, the Appellate Court may order that the execution of the sentence or order appealed against be suspended. It will be in fitness of things to refer to the relevant case laws on the subject.

5.5 In the case of Rama Narang v. Ramesh Narang and others reported in (1995) 2 SCC 513, the Supreme Court in paras 11 to 16 held as under:

Section 389 of the Code is entitled "suspension of sentence pending the appeal, release of appellant on bail". Sub- section (1) then provides 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 on bail, or on his own bond. On a plain reading of sub-section (1) of Section 389 of the Code it becomes clear that pending an appeal by a convicted person, the Appellate Court may order that the execution of the sentence or order appealed against be suspended.

12. Chapter XVIII relates to trial before a Court of Sessions. Sections 225 to 227, relate to the stage prior to the framing of charge. Section 228 provides for the framing of charge against the accused person. If after the charge is framed the Page 24 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined accused pleads guilty, Section 229 provides that the Judge shall record the plea and may, in his discretion, convict him thereon. However, if he does not enter a plea of guilty Sections 230 and 231 provide for leading of prosecution evidence. If, on the completion of the prosecution evidence and examination of the accused, the Judge considers that there is no evidence that the accused committed the offence with which he is charged, the Judge shall record an order of acquittal. If the Judge does not record an acquittal under Section 232, the accused would have to be called upon to enter on his defence as required by Section

233. After the evidence-in-defence is completed and the arguments heard as required by Section 235, Section 235 requires the Judge to give a judgment in the case. If the accused is convicted, sub- section (2) of Section 235 requires that the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence and then pass sentence on him according to law. It will thus be seen that under the Code after the conviction is recorded, Section 235(2) inter alia provides that the Judge shall hear the accused on the question of sentence and then pass sentence on him according to law. The trial, therefore, comes to an end only after the sentence is awarded to the convicted person.

13. Chapter XXVII deals with judgment. Section 354 sets out the contends of Page 25 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined judgment. It says that every judgment referred to in Section 353 shall, inter alia, specify the offence (if any) of which and the Section of the Indian Penal Code or other law under which, the accused is con- victed and the punishment to which he is sentenced. Thus a judgment is not complete unless the punishment to which the accused person is sentenced is set out therein. Section 356 refers to the making of an order for notifying address of previously convicted offender. Section 357 refers to an order in regard to the payment of compensation. Section 359 provides for an order in regard to the payment of costs in non-cognizable cases and Section 360 refers to release on probation of good conduct. It will thus be seen from the above provisions that after the court records a conviction, the accused has to be heard on the question of sentence and it is only after the sentence is awarded that the judgment becomes complete and can be appealed against under Section 374 of the Code.

14. The provisions contained in the Companies Act have relevance to the management of the affairs of Companies incorporated under that law. The operation of Section 267 would take effect as soon as conviction is recorded by a competent court of an offence involving moral turpitude. Sections 267 , 274 and 283 referred to earlier constitute a code whereunder a Director, Managing Director and the whole- time Director are visited with certain disqualifications in the event of conviction.

NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined As already pointed out above, the Companies Act itself Makes a distinction in the matter of fixation of the point of time when the disqualification becomes effect in the case of a Director and a Managing Director. That is because of the fiduciary nature of the relationship, vide Needle Industries India Ltd. v. Needle Industries Ltd. (1981) 3 SCR 698.

15.Under the provisions of the Code to which we have already referred there are two stages in a criminal trial before a Sessions Court, the stage upto the recording of a conviction and the stage postconviction upto the imposition of sentence. A judgment becomes complete after both these stages are covered. Under Section 374(2) of the Code any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge may appeal to the High Court. Section 384 provides for summary dismissal of appeal if the Appellate Court does not find sufficient ground to entertain the appeal. If, however, the appeal is not summarily dismissed, the Court must cause notice to issue as to the time and place at which such appeal will be heard. Section 389(1) empowers the Appellate Court to order that the execution of the sentence or order appealed against be suspended pending the appeal. What can be suspended under this provision is the execution of the sentence or the execution of the order. Does 'Order' in Section 389(1) empowers the Appellate Court to order that the execution of the sentence or order appealed against be Page 27 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined suspended pending the appeal. What can be suspended under this provision is the execution of the sentence or the execution of the order. Does 'Order' in Section 389(1) mean order of conviction or an order similar to the one under Sections 357 or 360 of the Code? Obviously the order referred to in Section 389(1) must be an order capable of execution. An order of conviction by itself is not capable of execution under the Code. It is the order of sentence or an order awarding compensation or imposing fine or release on probation which are capable of execution and which, if not suspended, would be required to be executed by the authorities. Since the order of conviction does not on the mere filing of an appeal disappear it is difficult to accept the submission that Section 267 of the ' Companies Act must be read to apply only to a 'final' order of conviction. Such an interpretation may defeat the very object and purpose for which it came to be enacted. It is, therefore, fallacious to contend that on the admission of the appeal by the Delhi High Court the order of conviction had ceased to exist. If that be so why seek a stay or suspension of the Order?

16. In certain situations the order of conviction can be executable, in the sense, it may incur a disqualification as in the instant case. In such a case the power under Section 389(1) of the Code could be invoked. In such situations the attention of the Appellate Court must be specifically invited to the consequence that is likely to Page 28 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined fall to enable it to apply its mind to the issue since under Section 389(1) it is under an obligation to support its order 'for reasons to be recorded by it in writing'. If the attention of the Court is not invited to this specific consequence which is likely to fall upon conviction how can it be expected to assign reasons relevant thereto? No one can be allowed to play hide and seek with the Court; he cannot suppress the precise purpose for which he seeks suspension of the conviction and obtain a general order of stay and then con- tend that the disqualification has ceased to operate. In the instant case if we turn to the application by which interim 'stay' of the operation of the impugned judgment was secured we do not find a single word to the effect that if the operation of the conviction is not stayed the consequence as indicated in Section 267 of the Companies Act will fall on the appellant. How could it then be said that the Delhi High Court had applied its mind to this precise question before granting 'stay'? That is why the High Court order granting interim stay does not assign any reason having relevance to the said issue. By not making a specific reference to this aspect of the matter, how could the appellant have persuaded the Delhi High Court to stop the coming into operation of Section 267 of the Companies Act? And how could the Court have applied its mind to this question if its pointed attention was not drawn? As we said earlier the application seeking interim stay is wholly silent on this point. That is why we feel that this is a case in which the appellant Page 29 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined indulged in an exercise of hide and seek in obtaining the interim stay without drawing the pointed attention of the Delhi High Court that stay of conviction was essential to avoid the disqualification under Section 267 of the Companies Act. If such a precise request was made to the Court pointing out the consequences likely to fall on the continuance of the conviction order, the Court would have applied its mind to the specific question and if it thought that case was made out for grant of interim stay of the conviction order, with or without conditions attached thereto, it may have granted an order to that effect. There can be no doubt that the object of Section 267 of the Companies Act is wholesome and that is to ensure that the management of the company is not in soiled hands. As we have pointed out earlier the Managing Director of a company holds a fiduciary position qua the company and its shareholders and, therefore, different considerations would flow if an order is sought from the Appellate Court for staying the operation of the disqualification that would result on the application of Section 267 of the Companies Act. Therefore, even on facts since the appellant had not sought any order from the Delhi High Court for stay of the disqualification he was likely to incur under Section 267 of the Companies Act on account of his conviction, it cannot be inferred that the High Court had applied its mind to this specific aspect of the matter and therefore granted a stay of the operation of the impugned judgment. It is Page 30 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined for that reason that we do not find in the order of the High Court a single reason relevant to the consequence of the conviction under Section 267 of the Companies Act. The interim stay granted by the Delhi High Court must, therefore, be read in that context and cannot extend to stay the operation of Section 267 of the Companies Act."

5.6 In para 11 of the judgement of the Supreme Court, the order of the Delhi High Court while admitting the appeal passed an interim order which reads as under:

5.7 After referring to the various provisions of Cr.P.C ., the Supreme Court held that if an application under Section 389 if the attention of the court is not drawn to the specific consequence which is likely to follow or fall upon Page 31 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined on conviction, the Court cannot be expected to assign reasons. In absence of a precise request pointing out the consequences likely to fall on the continuance of the conviction order, the interim stay therefore must be read in that context and cannot extend to stay the operation of Section 267 of the Companies Act. Similarly if the application of the present appellant is read, it is clear that no unequivocal and a precise request made pointing out that in case of conviction being continued, the appellant shall face dismissal from service under the relevant rules. The emphasis was more on the aspect of sentence and consequential liberty by bail and suspending of sentence. Therefore, the order dated 17.07.2014 has to be read in that context as set out by the Supreme Court in the case of Rama Narang (supra). The application's contents have been reproduced. Reading the Page 32 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined order dated 17.07.2014 in that context indicates that the order or judgement of the Trial Court was suspended keeping in view shortness of sentence and therefore bail. It was clearly therefore an interim stay when read in the context of suspension of sentence and cannot extend to stay the operation so as to stay the conviction.

5.8 In the case of K.C.Sareen (supra) also the Supreme Court had clarified that though the power to suspend an order of conviction, apart from the order of sentence, is not akin to Section 389(1) of the Code, its exercise should be limited to very exceptional cases. The Supreme Court observed as under:

When a public servant was found guilty of corruption after a judicial adjudicatory process conducted by a court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction it is public interest which suffers and sometimes even irreparably. When a public servant who is convicted of corruption is allowed to continue to hold public office it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction the fall out would be one of shaking the system itself. Hence it is necessary that the court should Page 35 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined not aid the public servant who stands convicted for corruption charges to hold only public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level. It is a different matter if a corrupt public officer could continue to hold such public office even without the help of a court order suspending the conviction.

13. The above policy can be acknowledged as necessary for the efficacy and proper functioning of public offices. If so, the legal position can be laid down that when conviction is on a corruption charge against a public servant the appellate court or the revisional court should not suspend the order of conviction during the pendency of the appeal even if the sentence of imprisonment is suspended. It would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision."

5.9 The Court clearly observed that "merely because the convicted person files an appeal in challenge of the conviction the Court should not suspend the operation of the order of conviction."

NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined 5.10 Reading the dicta of Supreme Court and keeping this in mind, we are not in agreement with the submission of the learned counsel Shri K.B.Pujara that the sentence 'the judgment dated 05.07.2014 passed by Additional Sessions and Special Judge (ACB), Bhuj Kutch, in Special Case (ACB) No.12 of 2010 shall remain under suspension till final hearing and disposal of the appeal." has to be read to mean stay of conviction also. The order has to be read in its entirety and even though no reasons were invited by the Public Prosecutor, the order in context of suspension of sentence and non-stay of conviction.

5.11 In the decision in the case of K. Prabhakaran v. P. Jayarajan reported in (2005) 1 SCC 754 a Constitution Bench of the Supreme Court in paragraph no.42 held as Page 37 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined under:

5.12 The reading of the decision of the Constitution Bench would indicate that a person convicted may have filed an appeal. He may also have secured an order suspending execution of the sentence or order appealed against under Page 39 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined Section 389 of the Criminal Procedure Code.

What is suspended is not the conviction or sentence, it is only the execution of the sentence or order which is suspended. It is suspended not obliterated.

5.13 In the case of Lalsai Khunte v. Nirmal Sinha and others reported in (2007) 9 SCC 330, the Supreme Court had the occasion to consider the scope of stay or suspension of order of conviction. After extensively referring to the decision in the case of K. Prabhakaran (supra) and in the case of Ravikant S. Patil (supra), the Supreme Court held as under:

9. Recently this Court in the case of Ravikant S. Patil Vs. Sarvabhouma S. Bagali reported in {2006(12) SCALE 295} has clearly held that the Court has enough power to stay the conviction. It was held as under:-

10. Again recently in the case of Navjot Singh Sidhu Vs. State of Punjab reported in {JT 2007 (2) SC 382), Hon'ble Court while entertaining the appeal of accuse stayed the conviction. The relevant portion of the judgment reads as under:

11. Therefore, this Court in recent decisions held that the appellate Court has power to stay the execution of the conviction and if appellate Court has stayed the conviction then in that case , this will not operate as a disqualification. But simply order of suspension of the sentence will not operate as staying the conviction. It was specifically mentioned that the stay of order of the conviction will mean it is temporarily non-operative.

12. As already mentioned above, in the present case it is clearly transpired that the appellate Court suspended the order of the trial court dt. 9th May, 2002 and granted the bail to the accused appellant. The suspension does not mean the stay of the conviction. We have ourselves seen the application for suspension of sentence. The said application is a routine application under Section 389 whereby the appellant sought for the suspension of sentence. There is nothing in that application to suggest that the applicant therein had sought the stay of conviction in contra- distinction to the suspension of sentence. In Ravi Kant Patel's case cited supra, it will be seen that an application for stay of conviction was specifically filed specifying the consequences if the conviction was not Page 48 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined stayed. This Court had taken that fact into consideration while holding that in that case the conviction was specifically stayed. Such is not the case here. If the incumbent had been vigilant enough, he could have moved the court even later on after obtaining the stay of conviction particularly in view of the fact that he wanted to contest the election but that was not done.

13. In the case of Rama Narang Vs. Ramesh Narang and Ors. reported in {1995)2 SCC 513} their Lordships were examining the effect of conviction under the Companies Act, 1956 , that what is the effect of the conviction of Managing Director for an offence involving moral turpitude as disqualification and suspension of that conviction by the appellate court. This Court after examining the question took the view that Section 389(1) of the CR.P.C. confers the power on appellate Court to stay the operation of the order of the conviction. If the order of conviction is to result to some disqualification of the type mentioned in Section 267 of the Companies act, a narrow meaning should not be given to Section 389(1) of the Code to bar the Court from granting an order staying operation of order of conviction in a fit case. Therefore, their Lordships were very clear that Section 389(1) of the Code empowers the appellate court to stay the conviction also. But suspension will not amount to staying the conviction. It was held as under:

Therefore, when an appeal is preferred under Section 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 Section 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 Section 482 of the Code if the power was not to be found in Section 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 Section 482 of the Code if it was confronted with a situation of there Page 50 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined 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 Section 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 of (sic 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."

14. As already pointed out above that on 31st May, 2002, the appellate Court while granting him the bail only suspended the impugned order dated 9th May, 2002. Thus suspension does not amount to temporarily washing out the conviction. The conviction still remains, only the operation of the order and the sentence remain suspended that does not amount to temporary stay of the conviction. A specific order staying conviction has to be sought."

NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined 5.14 Interpreting the order of the Appellate Court dated 31.05.2002 passed in the Criminal Appeal whereby the order dated 09.05.2002 of the Trial Court was suspended, the Supreme Court held that the suspension of the order does not mean stay of conviction. Reading para 12 of the decision would lead us to hold that in light of the fact that the Appellant held filed a routine application under Section 389 of the Criminal Procedure Code, whereby, the appellant sought suspension of sentence and there was nothing specifically specifying the consequences if conviction is not stayed, the observations made in para 4 of the order dated 17.07.2014, in case of the appellant herein, which we have quoted above would only mean suspension of sentence which does not amount to temporary working out the conviction. The conviction still remains only the operation of the order and sentence remain Page 52 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined suspended and that does not amount to temporary stay of the conviction.

5.15 In the case of Lok Prahari through its General Secretary S.N. Shukla v. Election Commission of India and others reported in (2018) 18 SCC 114, the Supreme Court on a review of the case laws in para 16 held as under:

5.16 The powers of the Appellate Court is staying conviction cannot be disputed but the same is by Page 54 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined way of exception. We cannot therefore agree to hold that in case of the appellant, the order dated 17.07.2014 in the Criminal Misc.

Application can be read to be an order staying conviction.

5.17 The Supreme Court, recently, in the case of Afjal Ansari v. State of Uttar Pradesh reported in (2024) 2 SCC 187 had the occasion to consider the provisions of Section 389 of the Criminal Procedure Code. The Supreme Court in para 22 of its majority view though did hold that while the appellant may not have enumerated any material facts regarding irreversible consequences in his application the appellate Court is well empowered to take judicial notice of the consequence. However, the Court hastened to add that a literal construction cannot be at the cost of legitimate public aspirations.

NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined "22. It is essential to emphasize that while the Appellant did not enumerate any material facts regarding irreversible consequences in his application filed before the High Court, seeking the suspension of conviction, this principle can be traced to the statutory provisions outlined in Section 8 of the RPA. The High Court or this Court however, while exercising their Appellate jurisdictions, are well empowered to take judicial notice of these consequences. Additionally, the Respondent also does not contest the fact that if the conviction is not stayed, the Appellant would not only face disqualification as a Member of the Eighteenth Lok Sabha but would also incur disqualification to participate in future elections for Parliamentary or State Legislative seats. Taking into consideration the consistent legal position adopted in this regard, the severity of these outcomes underscores the urgency and gravity of the matter at hand.

23. In this context it is crucial that we also address the final issue which is before us for consideration, i.e., the question of relevance of 'moral turpitude' in the present circumstances. While contemplating to invoke the concept of 'moral turpitude' as a decisive factor in granting or withholding the suspension of conviction for an individual, there is a resounding imperative to address the issue of depoliticising criminality. There has been increasing clamour to decriminalise polity and hold elected representatives accountable for Page 56 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined their criminal antecedents. It is a hard truth that persons with a criminal background are potential threats to the very idea of democracy, since they often resort to criminal means to succeed in elections and other ventures. In the present context too, substantial doubt has been cast upon the Appellant's criminal antecedents along with the veracity and threat posed by these claims, in light of the many FIRs that have been produced in these proceedings.

24. While this concern is undeniably pertinent, it remains the duty of the courts to interpret the law in its current form. Although 'moral turpitude' may carry relevance within the context of elected representatives, the courts are bound to construe the law in its extant state and confine their deliberations to those facets explicitly outlined, rather than delving into considerations pertaining to the moral rectitude or ethical character of actions. This is especially true when it is solely motivated by the convicted individual's status as a political representative, with the aim of disqualification pursuant to the RPA.

25. Having said so, we hasten to hold that societal interest is an equally important factor which ought to be zealously protected and preserved by the Courts. The literal construction of a provision such as Section 389(1) of the CrPC may be beneficial to a convict but not at the cost of legitimate public aspirations. It would thus be appropriate for the Courts to balance the Page 57 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined interests of protecting the integrity of the electoral process on one hand, while also ensuring that constituents are not bereft of their right to be represented, merely consequent to a threshold opinion, which is open to further judicial scrutiny."

5.18 Speaking through Justice Dipankar Datta (dissenting) the Supreme Court explained the manner in which the power under Section 389(1) could be exercised in paras 54 to 62 held as under:

56. Bare perusal of the aforementioned decisions reveal how this Court has differently dealt with approaches made by, inter alia, a Managing Director of a company, a member of the Legislative Assembly, a member of Parliament, a film actor intending to join politics, a bank officer, a civil post holder and a principal of an institution, while they sought for stay of conviction.

57. It is also noteworthy that notwithstanding Rama Narang (supra) referring to section 482 of the Cr. PC as the repository of power to stay a conviction in a case where section 389(1) thereof may not apply, the power of an "Appellate Court" to stay a conviction pending an appeal against a judgment and order of conviction and sentence too has been read into section 389(1) by Rama Narang (supra), although the statute on its plain language does not expressly say so. This, in all probability, is (2014) 8 SCC 909 because the inherent power under section 482 is the exclusive preserve of the high courts and not any other court exercising appellate power; hence, an "Appellate Court", not being a high court, would be denuded of the power to stay a conviction under section 482 in case such a prayer were made during the pendency of an appeal before it (the appellate court).

58. It is considered most appropriate, at this stage, to refer to the decision of the Constitution Bench of this Court in K. Page 60 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined Prabhakaran v. P. Jayarajan17 . In a somewhat different context, this Court did have the occasion to consider section 389 , Cr. PC and made a pertinent observation as to what is permissible thereunder. The said observation reads:

59. Although the aforesaid observation in K. Prabhakaran (supra) correctly captures the essence of section 389 , Cr. PC., it appears not to have been placed before the other Benches of this Court while it rendered decisions subsequent thereto (some of which have been noted hereinabove). Although a difference between an 'order of conviction being stayed' and 'execution of the order appealed against being suspended' in the context of exercise of jurisdiction by the courts under the Cr. PC is (2005) 1 SCC 754 discerned, such difference was not delineated possibly because the issue before the Court did not warrant it. In any event, K. Prabhakaran (supra) being a Constitution Bench decision, the same would bind all Benches of lesser strength and it is trite that any interpretation of section 389(1) , Page 61 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined Cr. PC not in line therewith has to yield to it. At the same time, Rama Narang (supra) without being doubted having held the field so long and by which the power to stay conviction under section 389 , Cr. PC stands judicially acknowledged, all later decisions including K. Prabhakaran (supra) must be read as complimentary to it.

60. At this juncture, it would also be of profit to refer to the decision in Lalsai Khunte v. Nirmal Sinha18 where, while discussing the effect of stay of conviction as compared to suspension of the order under appeal at some length, the Bench followed K. Prabhakaran (supra). In that case, the appellant had been convicted for offences under sections 420 and 468 read with section 34 of the IPC and sentenced to two years imprisonment by the trial court's order dated 9th May, 2002. The appellate court by an order dated 31st May, 2002 suspended the order of the trial court dated 9th May, 2002 and granted bail to the appellant. Meanwhile, the appellant and the respondent intended to contest election for the same constituency seat. The Returning Officer was misled by the appellant, who withheld vital information with regard to his conviction. In the result, the appellant's candidature could not be rejected by the Returning Officer. Both the appellant and the respondent thereafter (2007) 9 SCC 330 contested the election, wherein the former returned victorious. An election petition was filed by the respondent and it succeeded before the relevant high court resulting in the appellant's election to the Legislative Assembly being set aside. The Page 62 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined order of the high court was the subject matter of the appeal.

61. The sole question falling for decision was whether the order passed on 31st May, 2002 by the appellate court, whereby the conviction and sentence of the appellant was suspended, would amount to staying the conviction or not. This Court, while dismissing the appeal, perused the appellant's application under section 389 , Cr. PC and found the same to be a routine application for suspension of sentence without any prayer seeking stay of conviction. Rama Narang (supra) was read to lay down the law that section 389(1) , Cr. PC empowers the appellate court to stay the conviction also but that, suspension of the order appealed against would not amount to staying the conviction.

62. Referring to Ravikant S. Patil (supra), it was observed that there an application for stay of conviction was specifically filed specifying the consequences if the conviction was not stayed and that such fact was taken into consideration while holding in that case that the conviction was specifically stayed, which was not the case here. Suspension, the Court held, did not mean the stay of the conviction. It was held that if the incumbent had been vigilant enough, he could have moved the court even later on for obtaining the stay of conviction, particularly in view of the fact that he wanted to contest the election but that was not done. It was also held that:

(emphasis supplied).

5.19 Reading the aforesaid paras would indicate that relying on a decision in the case of State of Maharashtra v. Balakrishna Dattariya Kumbhar reported in (2012) 12 SCC 364 quoting para 15 of the said judgement held that power to stay conviction must be in exceptional cases with great circumspection and caution.

Relief of staying of the order of conviction cannot be granted only on the ground that an employee may lose his job, if the same is not done.

5.20 The Supreme Court reiterated the observations of the Constitutional Bench in the case of K. Prabhakaran (supra), the guiding principles that emerged from the various precedents were set out by the Supreme Court in para 64 of the decision which read as under:

whatever be the prayer made before the Court of appropriate jurisdiction, the same can be granted depending upon the facts of each particular case and the courts have a duty to look at all aspects including the ramifications of keeping the conviction in abeyance.

64.3. stay of conviction or suspension of execution of conviction is a rare occurrence, and in order to avail this exceptional measure, it must be demonstrated that irreversible consequences and injustice would otherwise entail which cannot be undone in future;

64.4. a convict who has appealed against the judgment and order of conviction and sentence - if he wishes to have the conviction stayed - has to specifically pray for stay of conviction, since despite suspension of execution of sentence and the order appealed against, the conviction remains and such suspension does not amount to stay of conviction;

64.5. while seeking a stay of conviction pending appeal, it is imperative for the Page 66 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined appealing convict to expressly bring to the court's attention the foreseeable consequences that could ensue if the conviction were not stayed and failure to elucidate these specific consequences may lead to the denial of a stay of conviction;

64.6. once a conviction is either stayed or execution of the conviction is suspended under the Cr. PC, the conviction becomes inoperative starting from the date of stay/suspension without, however, having the effect of obliteration; and 64.7. one cannot establish a fixed rule that the order of conviction should not be stayed or its execution suspended as a means to prevent an individual, who has committed an offence, from entering Parliament or the Legislative Assembly.

5.21 Reading of the aforesaid principles it is clear that in absence of any foreseable consequences expressly stated in the application and particularly when the application was for suspension of sentence despite the suspension of execution of sentence and the order appealled against, the order dated 17.07.2014 passed in the Criminal Appeal cannot be read Page 67 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024 NEUTRAL CITATION C/LPA/1337/2023 CAV JUDGMENT DATED: 05/03/2024 undefined that suspension of judgement would mean stay of conviction. Suspension of order does not stay conviction. The conviction remains and such suspension does not amount to stay of conviction.

5.22 It is apt to reiterate paragraph 54 of the decision of the Supreme Court where the Supreme Court has said that the approaches have to different for others.

(BIREN VAISHNAV, J) (PRANAV TRIVEDI,J) ANKIT SHAH Page 70 of 70 Downloaded on : Tue Mar 05 20:47:46 IST 2024