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Navnath Sadashiv Taras And Ors vs The State Of Maharashtra on 1 February, 2017

                                                                     7-APPA-133-2017.doc


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                            
                         CRIMINAL APPELLATE JURISDICTION




                                                    
                      CRIMINAL APPLICATION NO.133 OF 2017
                                      IN
                        CRIMINAL APPEAL NO.724 OF 2012




                                                   
     NAVNATH SADASHIV TARAS AND ORS.                         )...APPLICANTS

              V/s.




                                         
     THE STATE OF MAHARASHTRA                                )...RESPONDENT
                             
     Mr.Murtuza   Najmi   a/w.   Mr.Dilip   Shukla   a/w.   Mr.S.D.Pandey, 
     Advocate for the Applicant.
                            
     Mr.P.H.Gaikwad-Patil, APP for the Respondent - State.


                                   CORAM      :      A. M. BADAR, J.
                                   DATE       :      1st FEBRUARY 2017.
   



     ORAL ORDER :





     1                This is an application of appellant / original accused 

no.1 for suspension of his conviction recorded by the learned

Additional Sessions Judge, Pune, in Criminal Case No.125 of 2009

for the offence punishable under Section 307 read with Section 34

of the IPC, during pendency of the appeal filed by him.

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     2                Heard   the   learned   advocate   appearing   for   the 




                                                                              

applicant / accused no.1. By drawing my attention to paragraph

17 and onwards of the application, the learned advocate for the

applicant / accused no.1 argued that he wants to contest the

election of Pune-Chinchwad Municipal Corporation and 3 rd

February 2017 is the last date for filing nomination papers. The

learned advocate argued that sub-section (3) to Section 8 of the

Representation of the People Act, 1950, prohibits a person

convicted and sentenced to suffer imprisonment for not less than

two years from contesting elections. By drawing my attention to

sub-section (4) of Section 8 of the said Act, the learned advocate

argued that such bar is not absolute and upon stay of conviction,

the convict can contest the elections. By placing reliance on

judgment in Rajbala and Others vs. State of Haryana and

Others1 it is argued that right to vote and right to contest are

constitutional rights of the citizen and therefore, the applicant /

accused no.1 is entitled to contest the elections of the Pune-

Chinchwad Municipal Corporation. Reliance is placed on order in

the matter of Kamlesh Satyaprakash Agarwal (Bansal) vs. The
1 (2016) 2 Supreme Court Cases 445

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State of Maharashtra 2 passed by a learned Single Judge of this

court in which conviction for offences punishable under Section

498A and 306 of the IPC was stayed with a reason that

consequence of conviction may result into dismissal of the

accused, requiring him to vacate the premises alloted to him by

his employer. Reliance is also placed on another order of a

learned Single Judge of this court passed on 14 th March 2014 in

Criminal Application No.1132 of 2013 with connected

applications, and more particularly, to paragraph 9 of the said

order. It is argued that in the case in hand, even the learned

Single Judge of this court while releasing the applicant / accused

on bail vide order dated 12th July 2012 in Criminal Application

No.1076 of 2012 has held that the learned Trial Judge found

difficult to rely on testimony of the injured victim, and therefore,

sought corroboration by circumstantial evidence because the

victim had averred that 22 persons had participated in the assault

but ultimately 8 were tried and the injured had stated

involvement of 4 persons only during the trial. The learned

advocate took me through evidence of prosecution, and more
2 Criminal Application No.946 of 2011 dated 1st August 2011

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particularly, evidence of the injured victim, so also through the

history narrated by the victim in his supplementary statement. By

drawing my attention to the judgment and order of conviction, the

learned advocate argued that, with similar evidence, accused

nos.5 to 8 were acquitted, and therefore, present applicant who

was accused no.1, so also accused nos.2 and 3 are entitled for

acquittal. It is also argued that the motive is not proved as

accused persons were canvassing for a candidate which ultimately

emerged as a victorious candidate. It is submitted that evidence

shows that injury on left hand is attributed to the present

applicant, and therefore, he cannot be said to have committed the

offence punishable under Section 307 of the IPC. With this, it is

submitted that conviction recorded against the applicant / accused

needs to be stayed during pendency of the appeal, in order to

enable the applicant to contest the election of Pune-Chinchwad

Municipal Corporation.

3 The learned APP opposed the application by

submitting that the offence is proved.

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     4                I have carefully considered the rival submissions and 




                                                        

also perused the record and proceedings.

5 Sub-sections (3) and (4) of Section 8 of

Representation of the People Act, 1951, reads thus :

8 Disqualification on conviction for certain
offences – 1) A person convicted of an offence

punishable under–

                               (a)    .....
                            
                               (b)    .....
                               (c)  .....
      

                               (d)    .....
   



                               (e)    .....
                               (f)    .....
                               (g)    .....





                               (h)    .....
                               (i)    .....
                               (j)    .....





                               (k)    .....
                               (l)    .....
                               (m) .....
                               (n)    .....
                          2) ...... 

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3) A person convicted of any offence and sentenced to
imprisonment for not less than two years [other than

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.

4) Notwithstanding anything [in sub-section (1), sub-
section (2) or sub-section (3)] a disqualification under
either sub-section shall not, in the case of a person who

on the date of the conviction is a member of Parliament

or the Legislature of a State, take effect until three
months have elapsed from that date or, if within that

period an appeal or application for revision is brought in
respect of the conviction or the sentence, until that
appeal or application is disposed of by the court.

It is, thus, seen that, a person convicted for any offence and

sentenced to suffer imprisonment for atleast 2 years in respect of

offences other than those referred to in sub-sections (1) and (2)

stands disqualified from the date of his conviction and such

disqualification continues for a further period of 6 years after his

release. Offence punishable under Section 307 of the IPC is not

covered by sub-section (1) or (2) of Section 8 of the

Representation of the People Act, 1951.

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     6                In  the case  in  hand, the  applicant who was accused 




                                                                             

no.1 came to be tried for offences punishable under Sections 143,

147, 148, 307 read with Section 149 of the IPC and in the

alternative, for the offences punishable under Section 307 read

with Section 34 of the IPC, along with 7 other accused persons

vide Sessions Case No.125 of 2009. This Sessions case ultimately

ended in conviction of the applicant / accused no.1 along with

three other accused persons for the offence punishable under

Section 307 read with Section 34 of the IPC, and accordingly, the

applicant / accused is sentenced to suffer rigorous imprisonment

for 5 years apart from payment of fine and imprisonment in

default of payment of fine. The incident which resulted in

prosecuting the applicant / accused took place at the time of

election of Pune-Chinchwad Municipal Corporation in the year

2007. It is the case of prosecution that injured informant Manoj

Sarode was campaigning for the candidate of the Congress Party,

whereas, the applicant / accused no.1 along with his associates

were canvassing for the candidate of the Nationalist Congress

Party. The incident allegedly took place on 13 th February 2007, at

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about 9 p.m. The incident, as such, is outcome of election of the

local body. Injured informant / PW1 Manoj Sarode was taken to

hospital and at that time, he alleged assault by 20 to 22 people.

In his FIR, he is stated to have named four persons including the

present applicant, whereas, in supplementary statement some

other persons are also roped in.

7

Relevant portion of the examination-in-chief of injured

PW1 Manoj Sarode reads thus :

“We left Punjabai Dhaba for being went at home at
about 10.00 hours in the night. At Kivle Square

Deepak Taras, Navrath Taras, Raju Ghawane and

Kiran Waghmare obstructed us. It was about 11.00
hours in the night. At the relevant time they
caught me and started beating to me. At that time

Deepak assaulted on my head by the stick, Navnath
assaulted by the aged weapon on my left hand,
Kiran Waghmare also assaulted by the weapon in

his hand on my neck. At that time Raju Ghawane
assaulted at the side of my private part by kicks and
blows. I, therefore, fell down at the said spot. I
feel drowsiness but in conscious. I sustained
bleeding injuries.”

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     8                PW3 Dr.Umakant disclosed injuries found on person of 




                                                                             

PW1 Manoj Sarode. Those are as follows :

1) Incised wound on mid-1/3 dorsal aspect, of left
forearm of 9 x 4 x 2 cm on the same site there was
extenser tender injury – index middle ring finger

extension not possible.

2) Incised wound over posterior aspect of neck, 8 x
3 x 2 cm.

3) Incised wound over high parietal region of 6 x 1

x 1 cm.

4) Incised wound over left back – T6 -T7 level 3 x .5

x .5 cm.

9 It is seen that the learned Trial Court has appreciated

the evidence adduced by prosecution and ultimately convicted

four of accused persons including the present applicant of the

offences punishable under Section 307 read with Section 34 of the

IPC.

10 No doubt, as held by the Hon’ble Apex Court in the

matter of Rajbala (supra) right to vote and right to contest are

also constitutional rights of citizen. At the same time, one will

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have to keep in mind that the object of legislature in enacting sub-

section (3) to Section 8 of the Representation of the People Act,

1951, is to keep away the person convicted of offences and

sentenced to suffer imprisonment for more than 2 years from

contesting elections. This provision certainly deserves purposive

interpretation and just because an accused convicted in respect of

offences falling under the category provided by Section 8(3) of the

Representation of the People Act, 1951, desires to contest the

Municipal Election, conviction recorded against him cannot be

stayed mechanically for fulfilling his wish.

11 In the matter of Ravikant S. Patil vs.

Sarvabhabhouma S. Bagali 3 the Hon’ble Supreme Court has held

that power to stay the conviction should be exercised only in

exceptional circumstances where failure to stay the conviction

would lead to injustice and irreversible consequences. Similar are

the observations of the Hon’ble Apex Court in the matter of Navjot

Singh Sidhu vs. State of Punjab and Another 4. In the matter of

3 (2007) 1 SCC 673
4 (2007) 2 SCC 574

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State of Maharashtra through CBI, Anti Corruption Branch,

Mumbai vs. Balakrishna Dattatrya Kumbhar 5 the Hon’ble

Supreme Court has held that powers to stay conviction are

required to be exercised with great circumspection and caution,

for the purpose of which, the applicant must satisfy the court as

regards the evil that is likely to befall him, if the said conviction is

not suspended. In the matter of K.C.Sareen vs. CBI, Chandigarh
6

the Hon’ble Apex Court has held that ramifications of keeping

such conviction in abeyance will have to be looked into while

passing such order.

12 It is, thus, clear that, powers to suspend conviction are

to be exercised with due care and caution and that too in

exceptional circumstances. In the case in hand, the applicant /

accused has been convicted of the offence punishable under

Section 307 read with Section 34 of the IPC and the cause of

prosecuting him was the earlier election of Pune-Chinchwad

Municipal Corporation. Though it is alleged that the impugned

5 2012 (12) SCC 384
6 (2001) 6 Supreme Court Cases 584

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judgment and order of conviction is suffering from error of law

because of inconsistencies in evidence of prosecution, at this

stage, this aspect cannot be gone into. What is relevant is finding

of name of applicant / accused in the FIR, so also, in the evidence

of the injured victim. When the offence took place because of

election rivalry soon after the election, it is but natural that the

injured victim may attempt to rope in as many as opponents as he

can, but the court is not precluded from culling out the nuggets of

truth from his evidence. Ultimately, this appears to have been

done by the Trial Court by acquitting some other accused persons.

Falsus in uno falsus in omnibus is a principle aline to our criminal

jurisprudence. Therefore, acquittal of four accused persons by

itself would not give a certificate of innocence to the applicant /

accused. Object of the legislature in keeping away the convicts

from the contest of election will have to be given primacy while

deciding such application.

13 In this view of the matter, as the applicant / accused

stands convicted of the offence punishable under Section 307 read

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with Section 34 of the IPC, and that too from the incident which

has its origin in the election of Pune-Chinchwad Municipal

Corporation and is sentenced to suffer rigorous imprisonment for

more than 2 years, the application for stay of conviction is

rejected.

14 Parties to act on authenticated copy of this order.

                             
                            
                                              (A. M. BADAR, J.)
      
   






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