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 offencepunishable 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 thanany 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 whoon 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 thatperiod 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 SquareDeepak 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 timeDeepak assaulted on my head by the stick, Navnath
assaulted by the aged weapon on my left hand,
Kiran Waghmare also assaulted by the weapon inhis 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 fingerextension 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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