AFJAL ANSARI v. STATE OF UP

Citation: [2023] 16 S.C.R. 969, 2023 INSC 1071

Court: Supreme Court of India

Bench: SURYA KANT, DIPANKAR DATTA AND UJJAL BHUYAN, JJ.

Judgment text

SUPREME COURT OF INDIA AFJAL ANSARI v. STATE OF UP Criminal Appeal No. 3838 of 2023 [2023] 16 S. C. R. 969 : 2023 INSC 1071 CASE DETAILS AFJAL ANSARI v. STATE OF UP (Criminal Appeal No. 3838 of 2023) DECEMBER 14, 2023 [SURYA KANT, DIPANKAR DATTA AND UJJAL BHUYAN, JJ. ] HEADNOTES Issue for consideration: What are the parameters to be considered for the suspension of conviction u/s. 389(1) CrPC; whether the appellant has made out a prima facie case for the suspension of conviction u/s. 389(1) CrPC; and whether conviction of an off ence involving 'moral turpitude' can be a valid ground to deny suspension of conviction u/s. 389(1) CrPC. Code of Criminal Procedure, 1973 - s. 389 (1) - Suspension of conviction -Appellant-member of Parliament, convicted u/s.

3(1) of the Gangsters Act and sentenced to four years imprisonment with a fi ne of Rupees One lakh by the trial court, and consequent thereto he was disqualifi ed from membership in the Lok Sabha - Thereagainst, the appellant fi led an appeal as also an application u/s.

389(1) for suspension of execution of the sentence awarded and his release on bail, during pendency of the appeal, stay of the eff ect and operation of the judgement passed by the trial court - High Court suspended the sentence and granted bail but rejected the stay on conviction - Correctness: Held: Per Surya Kant, J (For himself and Ujjal Bhuyan, J) High Court held that there was no cogent evidence to establish that the appellant was indulging in anti-social activities and crimes such as murder or ransom; and that the appellant's role in the old FIR, which stood reference point in the gang chart in the new FIR, had already resulted in his acquittal - Having applied the criteria that conviction, if allowed to operate would lead to irreparable damage and where the convict cannot be compensated in any monetary terms or otherwise, if he is acquitted later on, carves Ed. Note: Hon'ble Mr. Justice Surya Kant pronounced judgment on behalf of himself and Hon'ble Mr. Justice Ujjal Bhuyan.

Hon'ble Mr. Justice Dipankar Datta pronounced a separate judgment. 969 970 SUPREME COURT REPORTS [2023] 16 S. C. R.

out an exceptional situation, warranting an order of stay on his award of conviction, though partially - Potential ramifi cations of declining to suspend such a conviction are multifaceted - It would deprive the appellant's constituency of its legitimate representation in the Legislature; and the appellant would be disqualifi ed from contesting elections for a period of ten years - Thus, the need to balance the 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 - Conviction awarded to the appellant suspended subject to the given conditions, clarifi cations and directions - Ghazipur parliamentary constituency not to be notifi ed for bye-election, till the decision of the appellant's appeal by the High Court - Appellant not entitled to participate in the proceedings of the house, would not have the right to cast his vote in the house or to draw any perks or monetary benefi ts.

[Paras 13, 15, 17, 21, 23, 24] - Held: Per Dipankar Datta, J. (Dissenting) Allowing a convicted parliamentarian to attend parliamentary proceedings could not only be derogatory to the dignity of the Parliament but also derogatory to the good sense and wisdom of the people who elected such parliamentarian - While recognizing the importance of the electorate's representation, it is necessary to maintain a balance between this right and the enforcement of legal accountability within the democratic framework - The fact that the court is approached by a parliamentarian/legislator, by itself, should not be viewed with such importance and indispensability - Thus, the judgment passed by the High Court does not call for interference - Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act, 1986. [Paras 52, 80, 48] Code of Criminal Procedure, 1973 - s. 389(1) - Suspension of conviction - Essential parameters: Held: It is evident from the plain language of s.

389(1) that the appellate court is unambiguously vested with the power to issue an order for the suspension of a sentence or an order of conviction during the pendency of an appeal and grant bail to the incarcerated convict, for which it is imperative to assign the reasons in writing - The very notion of irreversible consequences is centered on factors, including the individual's criminal antecedents, the gravity of the off ence, and its wider social impact, while simultaneously considering the facts and circumstances of the case - s. 389(1) should not be interpreted in a narrow manner, in the context of a stay on an order of conviction, when there are irreversible consequences - An AFJAL ANSARI v.

STATE OF UP 971 order granting a stay of conviction should not be the rule but an exception and should be resorted to in rare cases depending upon the facts of a case - However, where conviction, if allowed to operate would lead to irreparable damage and where the convict cannot be compensated in any monetary terms or otherwise, if he is acquitted later on, that by itself carves out an exceptional situation. [Paras 10, 11, 15] Code of Criminal Procedure, 1973 - s. 389 (1) - Suspension of conviction - Conviction of an off ence involving 'moral turpitude', if a ground to deny suspension of conviction u/s.

389(1): Held: While invoking 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 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 - On facts, substantial doubt cast upon the appellant's criminal antecedents along with the veracity and threat posed by these claims, in light of the many FIRs produced in the proceedings - 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 confi ne 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 disqualifi cation.

[Paras 19, 20] Judicial Notice - Appellant seeking suspension of conviction u/s. 389(1) CrPC - Appellant not enumerate any material facts regarding irreversible consequences in his application fi led before the High Court, seeking the suspension of conviction: Held: This principle can be traced to the statutory provisions outlined in s. 8 of the Representation of the People Act - High Court or this Court however, while exercising their appellate jurisdictions, well empowered to take judicial notice of these consequences - Code of Criminal Procedure, 1973. [Para 18] 972 SUPREME COURT REPORTS [2023] 16 S. C. R. LIST OF CITATIONS AND OTHER REFERENCES In The Judgment of Surya Kant, J. Naranbhai Khikhabhai Kachchadia v. State of Gujarat Crl. Appeal No. 418/2016; Lok Prahari through General Secretary v. Election Commission of India and others [2018] 12 SCR 169 : (2018) 18 SCC 114; Lily Thomas v. Union of India [2013] 10 SCR 1130 : (2013) 7 SCC 653; Sanjay Dutt v.

State of Maharashtra (2009) 5 SCC 787; Ravikant S. Patil v. Sarvabhouma S. Bagali [2006] 8 Suppl. SCR 1156 : (2007) 1 SCC 673 - referred to. In The Judgment of Dipankar Datta, J. Rahul Gandhi v. Purnesh Ishwarbhai Modi & Anr. 2023 SCC OnLine SC 929 - distinguished. Ravikant S. Patil v. Sarvabhouma S. Bagali [2006] 8 Suppl. SCR 1156: (2007) 1 SCC 673; Rama Narang v. Ramesh Narang & Ors. [1995] 1 SCR 456 : (1995) 2 SCC 513; Navjot Singh Sidhu v. State of Punjab [2007] 1 SCR 1143 : (2007) 2 SCC 574; Sanjay Dutt v. State of Maharashtra (2009) 5 SCC 787; Lily Thomas v. Union of India [2013] 10 SCR 1130 : (2013) 7 SCC 653; Lok Prahari through General Secretary S. N. Shukla v. Election Commission of India & Ors. [2018] 12 SCR 169 : (2018) 18 SCC 114; Naranbhai Bhikhabhai Kachchadia v. State of Gujarat Criminal Appeal No. 418/2016; K. C. Sareen v. CBI (2001) 6 SCC 584; State of Maharashtra v. Balakrishna Dattatraya Kumbhar [2012] 9 SCR 601 : (2012) 12 SCC 384; Shyam Narain Pandey v.

State of U. P [2014] 8 SCR 923 : (2014) 8 SCC 909; K. Prabhakaran v. P. Jayarajan [2005] 1 SCR 296 : (2005) 1 SCC 754; Lalsai Khunte v. Nirmal Sinha (2007) 9 SCC 330; K. Anandan Nambiar, In Re AIR 1952 Madras 117; Public Interest Foundation and others v. Union of India and Another (2019) 3 SCC 224; Jyoti Basu v. Debi Ghosal [1982] 3 SCR 318 : (1982) 1 SCC 691; Pradeep Kumar Sonthalia v. Dhiraj Prasad Sahu (2021) 6 SCC 523; Ashish Shelar v. Maharashtra Legislative Assembly (2022) 12 SCC 273 - referred to. Constituent Assembly Debates, Volume 8 (19th May, 1949) - referred to. AFJAL ANSARI v. STATE OF UP 973 OTHER CASE DETAILS INCLUDING IMPUGNED ORDER AND APPEARANCES CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3838 of 2023. From the Judgment and Order dated 24. 07. 2023 of the High Court of Judicature at Allahabad in CRLMA No. 01 of 2023. Appearances: Dr. Abhishek Manu Singhvi, C. U. Singh, S. Wasim A. Qadri, Sr. Advs.

, Jubair Ahmad Khan, Tamim Qadri, Anuroop Chakravarti, Saeed Qadri, Shraveen Kumar Verma, Siddarth Seem, Saahil Gupta, Ms. Udita Singh, Advs. for the Appellant. K. M. Nataraj, A. S. G. , Sharan Dev Singh Thakur, A. A. G. , Ms. Ruchira Goel, Siddharth Thakur, Ms. Indira Bhakar, Adit Jayeshbhai Shah, Ajay Singh, Ms. Keerti Jaya, Advs. for the Respondent. JUDGMENT / ORDER OF THE SUPREME COURT JUDGMENT SURYA KANT, J. Leave granted. 2. This appeal is directed against the order dated 24. 07. 2023, passed by the High Court of Judicature at Allahabad (hereinafter, 'High Court'), partially allowing the application fi led by the Appellant under Section 389(1) of the Code of Criminal Procedure, 1973 (hereinafter, 'CrPC'), for the stay on the sentence and conviction, awarded by the Learned Additional Sessions Judge, MP/MLA Court, Ghazipur (hereinafter, 'Trial Court') vide judgement and order dated 29. 04. 2023.

The High Court, has through the impugned order, suspended the Appellant's sentence and granted him bail but the stay on conviction has been declined. F: 3. At this juncture, it is imperative to delve into the factual matrix to set out the context of the present proceedings. 974 SUPREME COURT REPORTS [2023] 16 S. C. R. 3. 1. The Appellant is a public representative, having served as a Member of the Legislative Assembly in Uttar Pradesh for fi ve consecutive terms, and as a Member of Parliament for two terms. Until the recent disqualifi cation following the judgment rendered by the Trial Court, the Appellant was the incumbent Member of Parliament for the Ghazipur Constituency, since 2019. The Appellant currently holds various positions, including roles in the Ghazipur Standing Committee on Agriculture, Animal Husbandry, and Food Processing, as well as the Ghazipur District Development Coordination and Monitoring Committee. 3. 2. On 19. 11.

2007, PW-1, who was the Station House Offi cer at the Mohammadabad Kotwali Police Station, received information from anonymous sources during his routine patrol with regards to the operations of a gang led by one Mukhtar Ansari in the area, who was reportedly involved in various illicit activities such as murder, extortion, kidnapping and other criminal acts, carried out for political gain. It was further informed that the said gang had instilled fear and terror in the public, discouraging everyone from opposing their actions. Based on such information, PW-1 prepared a comprehensive gang chart under the Uttar Pradesh Gangsters and Anti- Social Activities (Prevention) Act, 1986 (hereinafter, 'UP Gangsters Act') and obtained necessary approvals from the Police authorities and the District Magistrate of Ghazipur. On the very same day, Case Crime No.

1052/2007 was registered under Section 3(1) of the UP Gangsters Act at the Mohammadabad Police Station in the Ghazipur District of Uttar Pradesh (hereinafter, 'New FIR'). This registration emerged from the earlier Case Crime No. 589/2005, (hereinafter, 'Old FIR'), which was a murder case, in which the Appellant had been accused of conspiracy but was subsequently acquitted, as explained briefl y hereinafter. 3. 3. It is crucial to emphasise at this stage that the Appellant has been found involved in multiple FIRs fi led throughout the State of Uttar Pradesh. To provide a concise overview, a summary of these FIRs is presented below, elucidating their context and signifi cance in relation to the ongoing proceedings: i. Case Crime No. 28/1998 was registered under Section 171F of the Indian Penal Code, 1860 (hereinafter, 'IPC') and Section 135(2) of the Representation of People's Act, 1951 (hereinafter, 'RPA') AFJAL ANSARI v. STATE OF UP 975 [SURYA KANT, J. ] on 16. 02.

1998, at Police Station Nonhara, District Chandauli, Uttar Pradesh, for violation of the Model Code of Conduct during the election period. The Appellant has not yet been summoned by the investigating offi cer or the concerned Court in this case. ii. Case Crime No. 260/2001 was registered on 09. 08. 2001, at Police Station Mohammadabad, Uttar Pradesh, under Sections 147, 148 and 353 of the IPC, and Section 3 of the Prevention of Public Properties from Damages Act, 1984 along with Section 7 of the Criminal Law Amendment Act, 1932. The Appellant has since been granted bail in this case. iii. Case Crime No. 493/2005 was registered under Sections 302, 506, 120B of the IPC on 27. 06. 2005, at Police Station Mohammadabad, Uttar Pradesh in which the Appellant was named as a conspirator. However, since the Appellant was found to have played no particular role in the subject crime, his name was dropped during the early stages of the investigation and no chargesheet was fi led against him. iv.

Case Crime No. 589/2005 was registered under Sections 147, 148, 149, 307, 302, 404 and 120-B of the IPC, at Police Station Bhanvar Kol, District Ghazipur, on 29. 11. 2005. The Appellant was accused of hatching conspiracy in the said murder case. The investigation of this case was entrusted to the Central Bureau of Investigation (hereinafter, 'CBI') and the trial was subsequently transferred to the CBI Court at Rouse Avenue, New Delhi, wherein the Appellant was acquitted. The CBI has fi led an appeal challenging the acquittal of the Appellant, but till date no adverse order has been suff ered by him. Further, this is the only case mentioned in the gang chart that was prepared and relied upon in the instant case. v. Crime Case No. 1051/2007 was registered under Sections 302, 120-B, 436, 427 of the IPC and Sections 3, 4 and 5 of the Explosives Act, 1884 and Section 7 of the Criminal Law Amendment Act, 1932.

In this case, the name of the Appellant was dropped after it was deduced that he had no role to play in the reported crime. The Appellant was neither chargesheeted 976 nor summoned by the concerned Trial Court in this particular instance. vi. Case Crime No. 607/2009 under Sections 171 and 188 of the IPC was registered on 11. 04. 2009 at Police Station, Mohammadabad, Uttar Pradesh, alleging violation of the Model Code of Conduct during the election period. The Appellant has admittedly not been summoned in this case. vii. Case Crime No. 18/2014 was registered under Sections 171J, 188 of the IPC and Section 121(2) of the RPA, at Police Station Chakarghatta, District Chandauli, Uttar Pradesh and the Appellant has already been granted bail in this matter. 3. 4. Adverting to the New FIR, the Trial Court held the Appellant guilty under Section 3(1) of the UP Gangsters Act and awarded him a sentence of four years of simple imprisonment, along with a fi ne of Rs.

1,00,000/- (Rupees One Lakh only). Consequently, Notifi cation No. S. O. 1994 dated 01. 05. 2023 was published by the Lok Sabha Secretariat in the Gazette of India, disqualifying the Appellant from membership in the Lok Sabha, eff ective from the date of his conviction on 29. 04. 2023. 3. 5. The Appellant thereafter preferred Criminal Appeal No. 5295/2023 under Section 374(2) of the CrPC before the High Court, challenging the judgment and order of his conviction and sentence dated 29. 04. 2023 (hereinafter 'First Criminal Appeal'). He also fi led an application under Section 389(1) of the CrPC, seeking inter alia, (i) suspension of the sentence awarded by the judgement and order dated 29. 04. 2023 and his release on bail, during pendency of the First Criminal Appeal; (ii) stay of the eff ect and operation of the judgement and order dated 29. 04. 2023; and (iii) stay of realisation of fi ne during pendency of the appeal. 3. 6.

As noticed earlier, the High Court has partially allowed the application fi led by the Appellant. The execution of the sentence has been stayed and bail has been granted but stay on conviction has been declined. The instant appeal is thus confi ned to the Appellant's prayer for the stay of his conviction, during the pendency of his Criminal Appeal before the High Court. AFJAL ANSARI v. STATE OF UP 977 [SURYA KANT, J. ] CONTENTIONS OF PARTIES 4. We have heard Learned Senior Counsel for the parties at a considerable length and perused the documents brought on record. 5. Dr.

Abhishek Manu Singhvi, learned Senior Counsel for the Appellant, argued that the High Court erred in not granting suspension of the conviction, especially in light of the fact that disqualifi cation from membership of the Parliament, leads to irreversible consequences such as: (a) the loss of the next six months as Member of the Parliament in the Lok Sabha; and (b) disqualifi cation from contesting elections for a total period of ten years. He further contended that such a disqualifi cation would not only result in the Appellant losing his right to represent his constituency but would also rob his constituency of its representation before the Parliament. Learned Senior Counsel also highlighted the infi rmities in the impugned order of the High Court in denying stay of conviction, along with the material contradictions in the prosecution case against the Appellant. 6. Dr. Singhvi lent support to his contentions by citing decisions of this Court in Naranbhai Khikhabhai Kachchadia v.

State of Gujarat1 and Lok Prahari through General Secretary v. Election Commission of India and others,2 among others. 7. Mr. K. M. Nataraj, learned Additional Solicitor General, representing the State of UP, strongly contested the prayer for suspension of conviction on the ground that the Appellant having been convicted under Section 3(1) of the UP Gangster Act, with a sentence of more than two years under the said Act, automatically suff ered disqualifi cation by virtue of Section 8 of RPA. He underscored the contention that the stay or suspension of conviction under S. 389(1) of the CrPC is to be granted as an exception and not as a rule. Furthermore, Mr. Natraj vehemently contended that the right to represent or be represented is not a Fundamental Right and the Appellant's case cannot be deemed to be an exceptional or extraordinary circumstance that warrants suspension of conviction. He also relied on multiple decisions of this Court including, Lily Thomas v.

Union of India3and Sanjay Dutt 1 Crl. Appeal No. 418 / 2016. 2 (2018) 18 SCC 114, para 16. 3 (2013) 7 SCC 653, para 35. 978 SUPREME COURT REPORTS [2023] 16 S. C. R. v. State of Maharashtra,4 to buttress his assertion that the suspension of conviction ought to be done only in rare and exceptional cases. 8. In our considered opinion, the questions that fall for deliberation, are set out as follows: i. What are the parameters to be considered for the suspension of conviction under Section 389(1) of the CrPC? ii. Whether the Appellant has made out a prima facie case for the suspension of conviction under Section 389(1) of the CrPC? iii. Whether conviction of an off ence involving 'moral turpitude' can be a valid ground to deny suspension of conviction under Section 389(1) of the CrPC? ANALYSIS 9.

We have taken into consideration the Appellant's extensive history of holding various positions of responsibility, along with the allegations that culminated in his conviction and subsequent disqualifi cation from his position as Member of the Parliament in the Lok Sabha. 10. At the outset, it is imperative to delineate the essential parameters that must be meticulously examined to determine whether a case can be made out for suspension of conviction under Section 389(1) of the CrPC. Section 389(1) enjoys upon the Appellate Court, the power to issue an order for the suspension of a sentence or an order of conviction during the pendency of an appeal. It may be thus of paramount importance to scrutinise the precise language of Section 389(1) of the CrPC, which is articulated as follows: "S.

389(1) - 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 confi nement, that he be released on bail, or on his own bond. " 11. It becomes manifestly evident from the plain language of the provision, that the Appellate Court is unambiguously vested with the power 4 (2009) 5 SCC 787, para 12. AFJAL ANSARI v. STATE OF UP 979 [SURYA KANT, J. ] to suspend implementation of the sentence or the order of conviction under appeal and grant bail to the incarcerated convict, for which it is imperative to assign the reasons in writing. This Court has undertaken a comprehensive examination of this issue on multiple occasions, laying down the broad parameters to be appraised for the suspension of a conviction under Section 389(1) of the CrPC.

There is no gainsaying that in order to suspend the conviction of an individual, the primary factors that are to be looked into, would be the peculiar facts and circumstances of that specifi c case, where the failure to stay such a conviction would lead to injustice or irreversible consequences. 5 The very notion of irreversible consequences is centered on factors, including the individual's criminal antecedents, the gravity of the off ence, and its wider social impact, while simultaneously considering the facts and circumstances of the case. 12. Turning to the case in hand, the Appellant was convicted on the basis of a gang chart that hinged solely on an Old FIR, where the Appellant had already been acquitted vide judgement dated 03. 07. 2019. Thereafter, the New FIR was registered, in which the Appellant had been convicted by the Trial Court under Section 3(1) of the UP Gangster Act.

The sequence of events, beginning from the registration of the New FIR until the rejection of the Appellant's plea for suspension of conviction by the High Court, is beset with some fundamental misconceptions and, therefore deserves closer legal scrutiny. 13. Upon careful consideration of the judgement of the Trial Court and the order passed by the High Court, it appears to us that, fi rstly, the impugned order suggests that there is no cogent evidence to establish that the Appellant has been indulging in anti-social activities and crimes such as murder or ransom. Secondly, the Appellant's role in the Old FIR, which stood as the singular reference point in the gang chart in the New FIR, had already resulted in his acquittal. Thirdly, the impugned judgment also indicates the absence of corroborative evidence supporting the contention that the Appellant had been responsible for infl uencing witnesses in retracting their statements.

Lastly, the High Court in its impugned order has meticulously highlighted that in the various FIRs that had been registered against the 5 Ravikant S. Patil v. Sarvabhouma S. Bagali, (2007) 1 SCC 673, para 15 and 16. 5. 980 SUPREME COURT REPORTS [2023] 16 S. C. R. Appellant, either he was not chargesheeted or the investigating agencies had exonerated him. 14. The High Court has further held that owing to the age of the Appellant and the extensive backlog of pending cases, the prospects of a prompt hearing of the First Criminal Appeal were low. It thus came to the conclusion that the refusal to suspend the sentence might render the very appeal otiose. Although the High Court stayed the execution of the sentence and granted bail to the Appellant, it refused to suspend the conviction itself. The High Court justifi ed such a recourse, after making reference to a multitude of judgments from this Court.

While the impugned judgment remains largely sound in its approach to aff ording relief in terms of bail and staying the sentence, we are unable to agree, partly, with its approach in declining the suspension of conviction, for those very reasons. 15. This Court has on several occasions opined that there is no reason to interpret Section 389(1) of the CrPC in a narrow manner, in the context of a stay on an order of conviction, when there are irreversible consequences. Undoubtedly, Ravikant Patil v. Sarvabhouma S. Bagali,6 holds that an order granting a stay of conviction should not be the rule but an exception and should be resorted to in rare cases depending upon the facts of a case. However, where conviction, if allowed to operate would lead to irreparable damage and where the convict cannot be compensated in any monetary terms or otherwise, if he is acquitted later on, that by itself carves out an exceptional situation.

Having applied the specifi c criteria outlined hereinabove to the present factual matrix, it is our considered view that the Appellant's case warrants an order of stay on his award of conviction, though partially. 16. It remains uncontested that the foundation of the New FIR, which is the origin point of the present proceedings, rests solely on a general statement and involved the rekindling of the Old FIR, in which the Appellant had already been acquitted. Though the aforementioned gang chart projects the Appellant as a repeat off ender, the fact remains that he has not been convicted in any prior case, apart from the case presently under consideration. In this context, the detailed circumstances elaborated 6 (2007) 1 SCC 673, para 15. AFJAL ANSARI v. STATE OF UP 981 [SURYA KANT, J. ] hereinabove, serve as compelling reasons to advocate for the suspension of the Appellant's conviction and the consequent disqualifi cation. 17.

We say so primarily for the reason that the potential ramifi cations of declining to suspend such a conviction are multifaceted. On the one hand, it would deprive the Appellant's constituency of its legitimate representation in the Legislature, since a bye-election may not be held given the remainder tenure of the current Lok Sabha. Conversely, it would also impede the Appellant's ability to represent his constituency based on the allegations, the veracity whereof is to be scrutinised on a re-appraisal of the entire evidence in the First Criminal Appeal pending before the High Court. This would potentially lead to de facto incarceration of the Appellant for a period of four years under the UP Gangsters Act and an additional six-year disqualifi cation period, even if he is eventually acquitted, which would eff ectively disqualify him from contesting elections for a period of ten years. 18.

It is essential to emphasize that while the Appellant did not enumerate any material facts regarding irreversible consequences in his application fi led 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 disqualifi cation as a Member of the Eighteenth Lok Sabha but would also incur disqualifi cation 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. 19.

In this context it is crucial that we also address the fi nal 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 their criminal antecedents. It is a hard truth 982 SUPREME COURT REPORTS [2023] 16 S. C. R. 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. 20. 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 confi ne 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 disqualifi cation pursuant to the RPA. 21.

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 benefi cial to a convict but not at the cost of legitimate public aspirations. It would thus be appropriate for the Courts to balance the 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. 22. We are of the further considered opinion that, the phenomena of docket explosion or the high backlog of cases should not be construed as valid grounds for thwarting the legislative intent enshrined in Section 8(3) of the RPA, which inter alia provides that: ".....

(3) A person convicted of any offence and sentenced to imprisonment for not less than two years [other than any off ence referred to in sub-section (1) or sub-section (2)] shall be disqualifi ed from the date of such conviction and shall continue to be disqualifi ed for a further period of six years since his release.... " AFJAL ANSARI v. STATE OF UP 983 [SURYA KANT, J. ] 23. It is therefore imperative to weigh the competing interests presented by both the Appellant and the State. This case pertains to (a) the Appellant's disqualifi cation as a Member of the Lok Sabha under Section 8(3) of the RPA, which disentitles a person who has been convicted and sentenced for a period exceeding two years, from holding offi ce or contesting elections; and (b) the State's pursuit of a conviction under Section 3(1) of the UP Gangsters Act, which penalises individuals labelled as a 'gangster' for participation in organised crime and engaging in anti-social activities.

While the pending appeal raises signifi cant legal and factual issues, it is exigent that the Appellant's future not be left hanging in the balance solely due to the said conviction. In such instances, where the Appellant's disqualifi cation and the State's criminal proceedings intersect, it becomes incumbent upon the Court in which the appeal is pending, to hear the matter out of turn and expeditiously adjudicate the same. CONCLUSION AND DIRECTIONS 24. We, thus, deem it appropriate to partially allow this appeal and suspend the conviction awarded to the Appellant in Special Sessions Trial No. 980/2012 subject to the following conditions, clarifi cations and directions: i. The Ghazipur Parliamentary Constituency shall not be notifi ed for bye-election, in terms of Section 151 of the RPA, till the decision of the Appellant's criminal appeal by the High Court; ii. The Appellant shall, however, not be entitled to participate in the proceedings of the House.

He shall also not have the right to cast his vote in the House or to draw any perks or monetary benefi ts; iii. The continuance of MP led welfare schemes in the Ghazipur Parliamentary Constituency without the Appellant being associated for the release of grants for such schemes, is not an irrevocable consequence as all such Schemes can be given eff ect, even in the absence of the local parliamentary representative; iv. The Appellant shall not be disqualified to contest future election(s) during the pendency of his criminal appeal before 984 SUPREME COURT REPORTS [2023] 16 S. C. R. the High Court and if he is elected, such election will be subject to outcome of the First Criminal Appeal; and v. The High Court shall make an endeavour to decide the Appellant's criminal appeal expeditiously and before 30. 06. 2024. 25.

Consequently, we direct the Registrar General of the High Court to put up this order before Hon'ble The Chief Justice of the High Court for immediate enlisting of the Criminal Appeal No. 5295 / 2023 with a request to the appropriate Bench, for an out of turn hearing and adjudication of the said appeal by 30. 06. 2024. The Appellant is directed to extend full cooperation to the High Court in this regard, failing which, this order shall be liable to variance. 26. It is clarifi ed that we have not expressed any opinion on the merits of the case and the First Criminal Appeal shall be decided by the High Court on its own merits. 27. The present appeal is disposed of in the above terms. DIPANKAR DATTA, J. 1. The draft of the judgment prepared by Hon'ble Surya Kant, J. , speaking for His Lordship and Hon'ble Ujjal Bhuyan, J. , is so well considered and supplemented with an enviable degree of articulation that it almost prompted my concurrence.

However, with all the respect and humility at my command, I have not been able to be ad idem with the Hon'ble Judges in the majority. I believe that the importance of the question involved would compel me to tread the path of dissent en route a diff erent end. 2. The assail in this appeal is to a judgment and order dated 24th July, 2023 of the High Court of Judicature at Allahabad ("High Court", hereafter) whereby a criminal miscellaneous application1 under section 389(1) of the Code of Criminal Procedure, 1973 ("Cr. PC", hereafter) fi led by the appellant, in connection with an appeal under section 374(2)2 thereof, was partly allowed. The sole question that emerges for a decision on this appeal is 1 No. 01/2023 2 Criminal Appeal No. 5295/2023 AFJAL ANSARI v. STATE OF UP 985 [DIPANKAR DATTA, J.

] whether the High Court was justifi ed in spurning the prayer of the appellant for stay of the order appealed against while it proceeded to grant his prayer for suspension of execution of sentence, in exercise of power conferred by section 389(1) of the Cr. PC. 3. The appellant is a member of Parliament, having been elected to the 17th Lok Sabha from Ghazipur constituency in 2019. He suff ered a conviction under section 3(1) of the Uttar Pradesh Gangsters and Anti- Social Activities (Prevention) Act, 1986 ("Gangsters Act", hereafter) vide judgment of the Special MP/MLA Court, Ghazipur ("Trial Court", hereafter) dated 29th April, 20233, consequent whereto he was sentenced to four years imprisonment together with a fi ne of Rupees One lakh. Aggrieved thereby, he approached the High Court for suspension of execution of the sentence as well as for suspension of the order appealed against which has succeeded in part as noted above.

The refusal of the High Court to stay the conviction of the appellant has resulted in his disqualifi cation from the membership of Parliament by operation of law, i. e. , section 8(3) of the Representation of the People Act, 1951 ("the RoP Act", hereafter), which has duly been notifi ed by the Lok Sabha Secretariat4. As a sequel thereto, the appellant stands barred from partaking in the electoral process for six years from the date of serving his sentence. 4. Hon'ble Surya Kant, J. in His Lordship's judgment has given a resume of the facts leading to the appeal carried by the appellant before this Court. Having regard thereto as well as the question that arises for decision, it is not considered expedient to repeat the same. However, in course of hearing of this appeal, the parties through their respective learned senior counsel have advanced elaborate submissions which are proposed to be noted a little later. 5.

In the impugned judgment and order, the High Court determined that the threshold for suspension of the order under appeal was not reached in the present case. It observed that suspension of the order appealed against is not the rule but an exception to be availed only in rare cases 3 Special Sessions Trial No. 980/2012 4 vide notifi cation bearing S. O. No. 1994 published in the Gazette and that exceptional circumstances have to be brought to the notice of the Court before the relief of such a suspension could be granted. Unless the attention of the Court is directed towards specifi c consequences that would befall the appealing convict on account of the conviction, he cannot urge for suspension of the order. It was noticed by the High Court that the only ground urged by the appellant for seeking relief of suspension of the order under appeal was that if such relief were not granted, he would remain disqualifi ed.

According to the High Court, absolutely nothing was mentioned in the affi davit fi led by the appellant about the ramifi cations of the conviction. Another consideration which weighed with the High Court was the objective of the Gangsters Act, being a law enacted to maintain public order for reining in organised crime and anti-social activities in the state of Uttar Pradesh as well as the severity of the accusations against the appellant. Consequently, it was ruled that although the appellant had made out a case of suspension of execution of sentence but could not fulfi l the conditions for staying his conviction. 6. Dr. Abhishek Manu Singhvi, learned senior counsel appearing for the appellant, assailed the impugned order by advancing the following submissions: a. The failure to stay the conviction would infl ict irreparable harm to the appellant. There is only a primary conviction, against which an appeal has been carried to the High Court.

Having regard to the huge pendency of appeals in the High Court, the said appeal is not likely to be heard in the near future resulting in the appellant being deprived of engaging in electoral politics for around 10 years. The case is at the stage of fi rst appeal, and refusal to stay the conviction of the appellant at this stage would be an onerous disproportionate limitation. b. The appellant has been a member of the Uttar Pradesh Legislative Assembly fi ve times and a member of the Lok Sabha twice. He has not been convicted for any off ence in the past, much less any heinous off ence, apart from the conviction under consideration. In a particular case, viz. Case Crime No. 589/2005, the appellant has been acquitted after a full-fl edged trial. The off ence, in the case under consideration, though has been held to be proved, the AFJAL ANSARI v. STATE OF UP 987 [DIPANKAR DATTA, J.

] judgment of conviction suff ers from various infi rmities based whereon the High Court itself proceeded to suspend execution of the sentence. There could be no cogent ground for not staying the conviction for the self-same reasons. The infi rmities present in the judgment and order rendered by the Trial Court and the infi rmity from which the judgment and order under appeal suff er would constitute 'exceptional circumstances' empowering this Court to stay the conviction. c. The electoral constituency of Ghazipur is not being represented in Parliament due to the appellant's disqualifi cation arising out of his conviction. The people of Ghazipur are suff ering as they do not have a legislative representative who can highlight their grievances in Parliament, and only executive and judicial remedies are left available to them. d.

Further, the execution of more than two dozen projects under the Members of Parliament Local Area Development Scheme5, which have been initiated by the appellant, are now upended and uncertain. The damage likely to be caused by reason thereof is such that it cannot be undone at a later stage. e. Balance of convenience in the present case falls squarely in favour of the appellant. The appellant would suff er irreversible harm if the conviction is not stayed as he would remain disqualifi ed and would not be able to participate even in the General Elections scheduled for 2024. If the appellant was to be ultimately found not guilty by the High Court, then no Court would be able to turn the clock back and remedy the harm suff ered by the appellant. However, if the conviction were to be stayed and down the line if the High Court affi rmed the conviction by the Trial Court, the appellant would in any case be bound to serve his sentence without any prejudice caused to the respondent. f.

Irreversibility of the position is one important factor that the High Court failed to bear in mind, while refusing to stay the conviction. 5 MPLAD Scheme 988 SUPREME COURT REPORTS [2023] 16 S. C. R. 7. Resting on the aforesaid submissions, Dr. Singhvi prayed that while setting aside the judgment and order of the High Court, to the extent impugned in this appeal, the conviction recorded against the appellant be stayed. 8. Per contra, Mr. K. M. Nataraj, learned Additional Solicitor General appearing for the respondent, supported the impugned judgment and order and advanced the following contentions: a. The standards for suspension of sentence and stay of conviction are diff erent. Stay of conviction can only be ordered by the court when exceptional circumstances are shown to exist. Dissimilar to suspension of execution of sentence, it is not a matter of practice to stay the conviction at the stage of fi rst appeal.

No exceptional circumstance having been shown to exist, the High Court has passed a reasoned judgment that ought not to be interfered on sparse grounds. b. The conviction in the present case is under the Gangsters Act which is of a serious nature and stay of conviction in this case would not be in consonance with the settled principles laid down by this Court in several of its decisions. c. The appellant is a notorious criminal, with numerous criminal antecedents. Reference was made to a list in this regard forming part of the reply of the respondent. d. The acquittal in Case Crime No. 589/2005 could be attributed to witness intimidation by the appellant as most witnesses in that trial turned hostile and did not support the prosecution case. The appellant was not acquitted unequivocally on merits. In any event, an appeal against the acquittal is pending. 9.

Learned ASG also invited our attention to the contents of the affi davit fi led by the appellant before the High Court in support of his prayer for suspension of the order under appeal as well as the fi nding returned by the High Court in that behalf. He contended that apart from referring to the fact of disqualifi cation incurred by him by reason of the conviction, the appellant had made no disclosure of facts and fi gures to demonstrate the consequences that he is likely to suff er should his prayer for suspension of AFJAL ANSARI v. STATE OF UP 989 [DIPANKAR DATTA, J. ] the order under appeal be not granted. Referring to the arguments advanced by Dr. Singhvi on behalf of the appellant, learned ASG contended that the same do not deserve consideration being beyond the four corners of the affi davit of the appellant before the High Court.

It was also his contention that the High Court rightly observed that "there is absolutely nothing that what consequences are likely to fall upon conviction". 10. Reiterating that no exceptional circumstances deserving suspension of the order appealed against having been brought out by the appellant, learned ASG concluded by submitting that the appeal may be dismissed. 11. Reference has been made by learned senior counsel appearing for the parties to multiple decisions of this Court on the subject of stay/ suspension of conviction, which need to be adverted to prior to deciding the contentious issue. In the process, it would be essential to consider certain other decisions too having a bearing on the question that this Court is now tasked to decide. 12. The decision in Ravikant S. Patil v. Sarvabhouma S. Bagali6, heavily relied on by Dr. Singhvi, in its turn, relied on Rama Narang v. Ramesh Narang & Ors. 7. Ravikant S.

Patil (supra) illuminates the position of law with respect to stay/suspension of conviction. This Court was considering an appeal under section 116-A of the RoP Act preferred by the appellant who was an elected member of the Karnataka Legislative Assembly. By judgment and order dated 28th July, 2000, the appellant was convicted and sentenced to undergo imprisonment for a period of 7 (seven) years by the Addl. Sessions Judge, Solapur, Maharashtra. Immediately thereafter, a criminal appeal was preferred by the appellant challenging the judgment of conviction and order of sentence. Pending the appeal, the Bombay High Court granted stay of the execution of the sentence. Fresh elections to the Karnataka Legislative Assembly having been notifi ed in the early part of 2004, the appellant once again moved the Bombay High Court and obtained an order dated 26th March, 2004 staying his conviction. The appellant having fi led his nomination by the last date, i. e.

, 31st March, 2004, objection was lodged by the respondent which was turned down. In the election that followed, the appellant came to be elected. Upon an election petition being fi led by the respondent, the same succeeded before the Karnataka High Court on the ground that the appellant stood disqualifi ed in terms of provisions contained in section 8 of the RoP Act to contest an election. The principle which is laid down by this decision is that stay of conviction is the exception, and to avail that exception the appellant will have to show irreversible consequence and injustice. The operative part is reproduced hereinbelow: "15. It deserves to be clarifi ed that an order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case. Where the execution of the sentence is stayed, the conviction continues to operate.

But where the conviction itself is stayed, the eff ect is that the conviction will not be operative from the date of stay. An order of stay, of course, does not render the conviction non-existent, but only non-operative. Be that as it may. Insofar as the present case is concerned, an application was fi led specifi cally seeking stay of the order of conviction specifying the consequences if conviction was not stayed, that is, the appellant would incur disqualifi cation to contest the election. The High Court after considering the special reason, granted the order staying the conviction. As the conviction itself is stayed in contrast to a stay of execution of the sentence, it is not possible to accept the contention of the respondent that the disqualifi cation arising out of conviction continues to operate even after stay of conviction. *** 16. 5.

All these decisions, while recognising the power to stay conviction, have cautioned and clarifi ed that such power should be exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences. " (emphasis supplied) Since the appellant was not disqualifi ed to fi le his nomination as well as to contest the election, this Court set aside the impugned judgment and order while allowing the appeal. 13. Turning to Rama Narang (supra), a decision rendered by a 3-Judge AFJAL ANSARI v. STATE OF UP 991 [DIPANKAR DATTA, J. ] Bench of this Court, it is observed that this decision was not formally cited by either of the parties though interpretation of section 389, Cr. PC and the law laid down therein for guiding the courts to suspend execution of the sentence and the order appealed against have signifi cant relevance for the purpose of deciding this appeal.

There, the appellant (Managing Director of the company in question) was convicted of certain off ences punishable under the Indian Penal Code, 1860 ("IPC", hereafter) and sentenced to three months' and two and a half years' rigorous imprisonment together with fi ne of Rs. 5,000/-. The conviction and sentence were challenged by the appellant under section 374(2) of the Cr. PC before the Delhi High Court. While hearing an application under section 389(1) thereof, stay of operation of the impugned order was directed and he was granted bail. Despite such conviction resulting in the appellant's disqualifi cation under section 267 of the Companies Act, 1956 to remain as the Managing Director, he continued to attend Board meetings of the company in question. Resolutions adopted in meetings attended by the appellant were challenged in a Company Petition fi led before the Bombay High Court by the respondent, which was subsequently withdrawn.

There were other proceedings between the parties before the Company Law Board, to which reference in detail need not be made. Ultimately a suit came to be instituted before the Bombay High Court by the appellant and others and a learned single Judge granted interim relief which enabled the appellant to continue as the Managing Director. An appeal was carried therefrom to the Division Bench, which was partly allowed. That part of the impugned order enabling the appellant to continue as the Managing Director was set aside. This order was then challenged before this Court. Inter alia, what fell for examination in that case was whether the power under section 389(1) of the Cr. PC could be invoked to stay the conviction. A three-Judge Bench of this Court held that there is noreason why a narrow meaning to section 389(1) should be given. Even otherwise, it was held that the High Courts have the power under section 482 of the Cr. PC to order such a stay.

This Court further held that although an order of conviction by itself is not capable of execution under the Cr. PC, but in certain situations and in a limited sense, an order of conviction could be executed, that is to say, when it may result in incurring of some disqualifi cation under other enactments. In such cases, the Court also held that it was permissible to invoke the power under section 389(1) of the Cr. PC for 992 SUPREME COURT REPORTS [2023] 16 S. C. R. staying the conviction. On facts, the Court held that the appellant had not moved the Delhi High Court with clean hands and had attempted to play hide and seek for which the said court could not even apply its mind as to whether the circumstances before it did deserve a stay of the conviction. The reasoning for such conclusions is traceable to paragraphs 16 and 19 of the decision, reading as follows: "16.

In certain situations the order of conviction can be executable, in the sense, it may incur a disqualifi cation 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 specifi cally invited to the consequence that is likely to 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 specifi c 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 contend that the disqualifi cation has ceased to operate. *** *** 19.

That takes us to the question whether the scope of Section 389(1) of the Code extends to conferring power on the Appellate Court to stay the operation of the order of conviction. As stated earlier, if the order of conviction is to result in some disqualifi cation of the type mentioned in Section 267 of the Companies Act, we see noreason why we should give a narrow meaning to Section 389(1) of the Code to debar the court from granting an order to that eff ect in a fi t case. The appeal under Section374 is essentially against the order of conviction because the order of sentence is merely consequential thereto; albeit even the order of sentence can be independently challenged if it is harsh and disproportionate to the established guilt.

Therefore, when an appeal is preferred under Section 374 of the Code the appeal is against both theconviction 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 AFJAL ANSARI v. STATE OF UP 993 [DIPANKAR DATTA, J. ] 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 theDivision Bench of the High Court of Bombay was not right in holding that the DelhiHigh Court could not have exercised jurisdiction under Section 482 of the Code if it was confronted with a situation of there being no other provision in the Code for staying the operation of the order of conviction.

In a fi t case if the High Court feels satisfi ed that the order of conviction needs to be suspended or stayed so that the convicted person does not suff er from a certain disqualifi cation provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone; the disqualifi cation incurred by Section 267 of the Companies Act and given eff ect 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 satisfi ed 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. " (emphasis supplied) 14. Navjot Singh Sidhu v.

State of Punjab8, cited on behalf of the appellant,had the occasion to deal with an argument that in order to maintain purity and probity in public bodies, criminalisation of politics has to be stopped and persons who have been convicted of any off ence should not be allowed to enter Parliament; and that irrespective of quantum of sentence, if a person is convicted for an off ence referred to in sub-section (1) of section 8 where the punishment imposed may only be a fi ne, a person will incur the disqualifi cation from the date of conviction which will remain for a period of 6 (six) years, thus evincing the intention of the framers of law that a convict should not enter the precincts of Parliament or the Legislature of a State. The contention raised was rejected holding that the RoP Act is a complete code providing not only the eligibility and qualifi cation for membership of the 8 (2007) 2 SCC 574 994 SUPREME COURT REPORTS [2023] 16 S. C. R.

House of People and the Legislative Assemblies but also for disqualifi cation on conviction and other matters. Parliament in its wisdom having made a specifi c provision for disqualifi cation on conviction by enacting section 8, it was held that it is not for the Court to abridge or expand the same. Rama Narang (supra) and Ravikant S. Patil (supra) were referred to, which recognized the power possessed by the court of appeal to suspend or stay an order of conviction. Such decisions having also laid down the parameters for exercise of such power, it was also held that it is not possible to hold, as a matter of rule, or, to lay down, that in order to prevent any person who has committed an off ence from entering Parliament or the Legislative Assembly the order of the conviction should not be suspended. It was reminded that the courts have to interpret the law as it stands and not on considerations which may be perceived to be morally more correct or ethical. 15.

On behalf of the respondent, learned ASG cited Sanjay Dutt v. State of Maharashtra9to contend that a mere bar to contest elections would not be suffi cient ground to stay the conviction. The relevant portion of the decision is excerpted below: "12. Despite all these favourable circumstances, we do not think that this is a fi t 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 off ence and sentenced to imprisonment for not less than two years from contesting the election and such person shall be disqualifi ed 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 CrPC shall be exercised only under exceptional circumstances. *** 14. In the present case, no such circumstances are in favour of the petitioner.

In view of the serious off ence for which he has been convicted by the Special Judge, we are not inclined to suspend the conviction and sentence awarded by the Special Judge in the present case.... " (emphasis supplied) 9 (2009) 5 SCC 787 AFJAL ANSARI v. STATE OF UP 995 [DIPANKAR DATTA, J. ] 16. The vires of section 8(4) of the RoP Act came to be challenged in Lily Thomas v. Union of India10, a decision on which learned ASG placed heavy reliance. According to him, what fl ows from the said decision is that exercise of power to stay a conviction should be limited to very exceptional cases and the present case does not commend to be such an exceptional case so as to warrant any stay of conviction recorded against the appellant. 17.

Sub-section (4), which was inserted in section 8 of the RoP Act by an amendment with eff ect from 15th March, 1989, provided for an automatic stay of disqualifi cation from membership if a convicted member of Parliament/Legislative Assembly brought an appeal/application for revision seeking setting aside of his conviction within three months thereof. This Court in Lily Thomas (supra) held that Parliament lacked the power to enact sub-section (4) of section 8 and declared the same ultra vires. It also found no merit in the submissions advanced on behalf of the respondents that if a sitting member of Parliament or a Legislative Assembly suff ers from a frivolous conviction by the trial court of the nature referred to in sub-sections (1), (2) and (3) of section 8, he will be remediless and suff er immense hardship as he would stand disqualifi ed on account of such conviction in the absence of sub-section (4). While repelling such submission, Rama Narang (supra) and Ravikant S.

Patil (supra) were referred to and it was held that in an appropriate case not only could the appellate court in exercise of its power under section 389(1) of the Cr. PC stay the order of conviction, but the High Courts in exercise of its inherent jurisdiction under section 482 of the Cr. PC could also stay the conviction if the power was not to be found in section 389 thereof. 18. Lok Prahari through General Secretary S. N. Shukla v. Election Commission of India & Ors. 11 was cited by Dr. Singhvi. There, a society registered under the Societies Registration Act, 1860 invoked the Public Interest Litigation jurisdiction of this Court under Article 32 of the Constitution seeking, inter alia, a declaratory relief that since the law does not provide for stay of conviction, even in case of stay of conviction by the appellate court for an off ence attracting disqualifi cation under section 10 (2013) 7 SCC 653 11 (2018) 18 SCC 114 996 SUPREME COURT REPORTS [2023] 16 S. C. R.

8 of the RoP Act, any such stay order does not have the eff ect of wiping out the disqualifi cation and reviving the membership with retrospective eff ect and consequently, the seat of the member concerned is deemed to have become vacant with eff ect from the date of conviction in terms of Articles 101(3)(a) and 190(3)(a) of the Constitution. This Court, having considered Rama Narang (supra), Lily Thomas (supra), Navjot Singh Sidhu (supra) and Ravikant S. Patil (supra), expounded the position of law as follows: "16. These decisions have settled the position on the eff ect of an order of an appellate court staying a conviction pending the appeal. Upon the stay of a conviction under Section 389 CrPC, the disqualifi cation under Section 8 will not operate. The decisions in Ravikant S. Patil and Lily Thomas conclude the issue.

Since the decision in Rama Narang, it has been well settled that the appellate court has the power, in an appropriate case, to stay the conviction under Section 389 besides suspending the sentence. The power to stay a conviction is by way of an exception. Before it is exercised, the appellate court must be made aware of the consequence which will ensue if the conviction were not to be stayed. Once the conviction has been stayed by the appellate court, the disqualifi cation under sub-sections (1), (2) and (3) of Section 8 of the Representation of the People Act, 1951 will not operate. Under Article 102(1)(e) and Article 191(1)(e), the disqualifi cation operates by or under any law made by Parliament. Disqualifi cation under the above provisions of Section 8 follows upon a conviction for one of the listed off ences.

Once the conviction has been stayed during the pendency of an appeal, the disqualifi cation which operates as a consequence of the conviction cannot take or remain in eff ect. In view of the consistent statement of the legal position in Rama Narang and in decisions which followed, there is no merit in the submission that the power conferred on the appellate court under Section 389 does not include the power, in an appropriate case, to stay the conviction. Clearly, the appellate court does possess such a power. Moreover, it is untenable that the disqualifi cation which ensues from a conviction will operate despite the appellate court having granted a stay of the conviction. The authority vested in the appellate court to stay a conviction ensures that a conviction on untenable or frivolous grounds does not operate to cause serious prejudice. As the decision in Lily Thomas has clarifi ed, a stay of the conviction would relieve the individual from suff ering AFJAL ANSARI v.

STATE OF UP 997 [DIPANKAR DATTA, J. ] the consequence inter alia of a disqualifi cation relatable to the provisions of sub-sections (1), (2) and (3) of Section 8. " (emphasis supplied) 19. The unreported decision in Naranbhai Bhikhabhai Kachchadia v. State of Gujarat12, relied on by Dr. Singhvi, was rendered on an appeal where the prayer for stay of conviction was declined by the relevant high court. The appellant, a sitting member of Parliament, had been convicted of off ences under sections 332, 186 and 143, IPC along with others but acquitted of the more serious off ence under section 3(1) (x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Looking to the facts of the case, this Court was of the view that adverse consequences will certainly follow not only to the appellant but also to his constituents in case the conviction remains, and the impact thereof would be irreparable.

Considering various factors as delineated in unnumbered paragraph 13, including the somewhat exceptional consequence of the disqualifi cation of the appellant from representing his constituents in Parliament for six years, this Court quashed the prosecution against the appellant only on the condition that the appellant pays to the victim/complainant Rs. 5,00,000/- within a week. 20. Finally, the recent decision of this Court in Rahul Gandhi v. Purnesh Ishwarbhai Modi & Anr. 13 was placed on behalf of the appellant wherein this Court observed that section 8(3) of the RoP Act has far-reaching consequences, as it not only aff ects the right of the appellant to continue in public life but also is a detriment to the right of the electorate which has elected him to represent their constituency. 21. It has been noticed that in Ravikant S. Patil (supra) and Lok Prahari (supra), this Court had considered the decision in K. C. Sareen v. CBI14.

That was a case where a bank offi cer having been convicted for an off ence punishable under the Prevention of Corruption Act, 1988 and sentenced to a year's imprisonment with fi ne of Rs. 500/-, had carried the conviction and sentence in appeal whereupon execution of the sentence was 12 Criminal Appeal No. 418/2016 (order dated 29th April, 2016) 13 2023 SCC OnLine SC 929 14 (2001) 6 SCC 584 998 SUPREME COURT REPORTS [2023] 16 S. C. R. stayed. However, in view of the conviction which remained operative, the disciplinary authority imposed the punishment of dismissal from service. The dismissed offi cer once again moved the relevant high court but without success. The second order dismissing the prayer for stay of conviction was challenged before this Court. Dismissing the civil appeal, this Court ruled that: "11.

The legal position, therefore, is this: though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389(1) of the Code, its exercise should be limited to very exceptional cases. Merely because the convicted person fi les an appeal in challenge of the conviction the court should not suspend the operation of the order of conviction. The court has a duty to look at all aspects including the ramifi cations of keeping such conviction in abeyance. It is in the light of the above legal position that we have to examine the question as to what should be the position when a public servant is convicted of an off ence under the PC Act.

No doubt when the appellate court admits the appeal fi led in challenge of the conviction and sentence for the off ence under the PC Act, the superior court should normally suspend the sentence of imprisonment until disposal of the appeal, because refusal thereof would render the very appeal otiose unless such appeal could be heard soon after the fi ling of the appeal. But suspension of conviction of the off ence under the PC Act, dehors the sentence of imprisonment as a sequel thereto, is a diff erent matter. *** 13. The above policy can be acknowledged as necessary for the effi cacy and proper functioning of public offi ces. 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. " (emphasis supplied) AFJAL ANSARI v. STATE OF UP 999 [DIPANKAR DATTA, J. ] 22. In order to understand the manner in which the power under section 389(1) of the Cr. PC could be exercised, reference to the decision of this Court in State of Maharashtra v. Balakrishna Dattatraya Kumbhar15would not be out of place. Faced with a circumstance surrounding the suspension of conviction of a senior excise offi cer by the Bombay High Court, this Court held that the conviction of public servants in corruption cases cannot be suspended merely because they would otherwise lose their jobs. This is what was also observed in paragraph 15 of the decision: "15.

Thus, in view of the aforesaid discussion, a clear picture emerges to the eff ect that the appellate court in an exceptional case, may put the conviction in abeyance along with the sentence, but such power must 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. The court has to consider all the facts as are pleaded by the applicant, in a judicious manner and examine whether the facts and circumstances involved in the case are such, that they warrant such a course of action by it. The court additionally, must record in writing, its reasons for granting such relief. Relief of staying the order of conviction cannot be granted only on the ground that an employee may lose his job, if the same is not done. " (emphasis supplied) 23. Again, in Shyam Narain Pandey v. State of U. P.

16, arising out of an appeal at the instance of a principal of an institution who was, inter alia, convicted for murder, this Court stressed on the exceptionality of the power to suspend the conviction and observed thus: "11. In the light of the principles stated above, the contention that the appellant will be deprived of his source of livelihood if the conviction is not stayed cannot be appreciated. For the appellant, it is a matter of deprivation of livelihood but he is convicted for deprivation of life of another person. Until he is otherwise declared innocent in 15 (2012) 12 SCC 384 16 (2014) 8 SCC 909 1000 SUPREME COURT REPORTS [2023] 16 S. C. R. appeal, the stain stands. The High Court has discussed in detail the background of the appellant, the nature of the crime, manner in which it was committed, etc. and has rightly held that it is not a very rare and exceptional case for staying the conviction. " 24.

Bare perusal of the aforementioned decisions reveal how this Court has diff erently dealt with approaches made by, inter alia, a Managing Director of a company, a member of the Legislative Assembly, a member of Parliament, a fi lm actor intending to join politics, a bank offi cer, a civil post holder and a principal of an institution, while they sought for stay of conviction. 25. 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 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). 26. It is considered most appropriate, at this stage, to refer to the decision of the Constitution Bench of this Court in K. Prabhakaran v. P. Jayarajan17. In a somewhat diff erent 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: "42. *** A court of appeal is empowered under Section 389 to order that pending an appeal by a convicted person the execution of the sentence or order appealed against be suspended and also, if he is in confi nement, that he be released on bail or bond.

What is suspended is 17 (2005) 1 SCC 754 AFJAL ANSARI v. STATE OF UP 1001 [DIPANKAR DATTA, J. ] not the conviction or sentence; it is only the execution of the sentence or order which is suspended. It is suspended and not obliterated. ***" (emphasis supplied) 27. Although the aforesaid observation inK. 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 diff erence 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 discerned, such diff erence 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), Cr. PC not in line therewith has to yield to it. At the same time, Rama Narang (supra) without being doubted having held the fi eld 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. 28. At this juncture, it would also be of profi t to refer to the decision in Lalsai Khunte v. Nirmal Sinha18 where, while discussing the eff ect 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 off ences 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 Offi cer 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 Offi cer. Both the appellant and the respondent thereafter contested the election, wherein the former returned victorious. An election petition was fi led by the respondent and it succeeded before the 18 (2007) 9 SCC 330 1002 SUPREME COURT REPORTS [2023] 16 S. C. R. relevant high court resulting in the appellant's election to the Legislative Assembly being set aside. The order of the high court was the subject matter of the appeal.

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. Referring to Ravikant S.

Patil (supra), it was observed that there an application for stay of conviction was specifi cally fi led 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 specifi cally 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: "14. As already pointed out above that on 31-5-2002, the appellate court while granting him the bail only suspended the impugned order dated 9-5-2002. 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 specifi c order staying conviction has to be sought. " (emphasis supplied) 29. In the context of civil proceedings, it is noted that Order XLI Rule 5 of the Code of Civil Procedure ("CPC", hereafter) empowers an appellate court to order stay of execution of the decree appealed from. The provisions of Order XLI of the CPC apply to appeals from orders in terms of Rule 2 of Order XLIII thereof. Law is well settled that 'stay of operation of an order' means that the order which has been stayed would not AFJAL ANSARI v. STATE OF UP 1003 [DIPANKAR DATTA, J. ] be operative from the date the order of stay is passed but it does not mean that the order, which is stayed, is wiped out from existence. However, it is in section 389(1), Cr.

PC that the expression "execution of the sentence or the order appealed against be suspended" pending the appeal is found instead of the legislature having used a simpler expression like "the order appealed against be stayed". Had the statute provided so and an order to that eff ect were passed, it would be suffi cient to stay the conviction as well as the sentence. However, the legislature has prefaced "the sentence or the order appealed against" with "execution", which has the eff ect of connoting that only such part of the judgment and order appealed against, which is capable of being executed, can be suspended under section 389(1), Cr. PC. Though conviction would be an integral part of the judgment and order carried in an appeal, but it is not executable in the sense a sentence of imprisonment and/ or fi ne or any other order fastening obligation on the convict is executable.

While section 389(1) empowers an appellate court to suspend execution of the sentence or the order appealed against, an order suspending execution of the order appealed against [according to K. Prabhakaran (supra) and Lalsai Khunte (supra)] would not amount to a stay of conviction. An order staying the conviction has to be sought before the concerned court and obtained by the convict to render any disability including a disqualifi cation as in the present case, incurred as a result of the conviction, inoperative. In the absence of a stay of conviction having been sought and an order to that eff ect having been passed, an order merely suspending execution of the order appealed against would be of no use in a matter of the present nature. 30. Be that as it may, the guiding principles that emerge from these precedents can briefl y be summarised as follows: a. the power to suspend execution of an order and/or to stay a conviction is traceable to section 389(1), Cr.

PC notwithstanding that the high courts may, in appropriate cases, exercise their inherent jurisdiction preserved by section 482 of the Cr.