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CASE NO.: Appeal (crl.)  59 of 2007

PETITIONER: Navjot Singh Sidhu

RESPONDENT: State of Punjab & Anr

DATE OF JUDGMENT: 23/01/2007

BENCH: G.P. Mathur & R.V. Raveendran

JUDGMENT: J U D G M E N T Cr.M.P. No. 490 of 2007 In  CRIMINAL APPEAL NO. 59 OF 2007

G. P. MATHUR, J.

The appellant Navjot Singh Sidhu along with co-accused  Rupinder Singh Sandhu was tried for charges under Section 302 IPC  and Section 323 read with Section 34 IPC, but was acquitted by the  learned Sessions Judge, Patiala, by the judgment and order dated  22.9.1999 which order was challenged by the State of Punjab by  filing an appeal in the High Court which has been allowed and the  appellant has been convicted under  Section 304 Part II IPC and has  been sentenced to 3 years R.I. and a fine of rupees one lakh.   The co- accused Rupinder Singh Sandhu has also been convicted under  Section 304 Part II read with Section 34 IPC and has been sentenced  to 3 years R.I. and a fine of rupees one lakh.   He has further been  convicted under Section 323 IPC and has been sentenced to 3 months  R.I.   The appellant filed special leave petition in this Court in which  leave has been granted on 12.1.2007 and he has been released on bail  and thus the execution of the sentence imposed upon him has been  suspended.  The appellant also moved an application for suspending  the order of conviction passed against him by the High Court on  which notice was issued to the State of Punjab and the said  application is being disposed of by the present order.  

2.      The circumstances leading to the filing of the application for  suspension of order of conviction need to be noticed.   The appellant  was a sitting Member of Parliament. Immediately after the  pronouncement of judgment by the High Court, he resigned from the  membership of the Lok Sabha.   It is stated in the application that for  maintaining probity and moral values in public life he resigned from  the membership of the Lok Sabha after his conviction.  However, he  wants to remain in public life and, therefore, wants to contest the  election again and face the electorate in the changed scenario.  The  reason for seeking a stay or suspension of order of conviction arises  on account of Section 8(3) of the Representation of the People Act,  1951 (hereinafter referred to as "the Act") by operation of which he  has incurred a disqualification for being chosen as, and for being, a  member of either House of  Parliament.  Section 7(b) and Sub- sections (3) and (4) of Section 8 of the Representation of the People  Act, 1951, which have a bearing on controversy in hand read as  under:- "7(b)   "disqualified" means disqualified for being  chosen as, and for being, a member of either House of  Parliament or of the Legislative Assembly or Legislative

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Council of a State."  

"8(3)   A person convicted of any offence and sentenced  to imprisonment for not less than two years (other than  any offence referred to in sub-section (1) or sub-section  (2)) shall be disqualified from the date of such conviction  and shall continue to be disqualified for a further period  of six years since his release.

(4)    Notwithstanding anything in sub-section (1), sub- section (2) and sub-section (3) a disqualification under  either sub-section shall not, in the case of a person who  on the date of the conviction is a member of Parliament  or the Legislature of a State, take effect until three  months have elapsed from that date or, if within that  period an appeal or application for revision is brought in  respect of the conviction or the sentence, until that appeal  or application is disposed of by the court."   

       By virtue of Sub-section (3) of Section 8 of the Act the  appellant incurred the disqualification as he has been sentenced to 3  years R.I.  Sub-section (4) of Section 8 provides that if on the date of  the conviction, a person is a Member of the Parliament then  notwithstanding anything in Sub-section (3), the disqualification  mentioned therein shall not take effect until 3 months have elapsed  from the date of order of conviction and if within that period an  appeal is brought in respect of the conviction or sentence, until that  appeal or application is disposed of by the Court.  This provision has  been interpreted by a Constitution Bench in K. Prabhakaran v. P.  Jayarajan (2005) 1 SCC 754 and it has been held that the protection  against disqualification will be available only till the current life of the  House (Parliament or the Legislature of a State) and the person  continues to be a member of a House, and not thereafter.   Since the  appellant was a sitting Member of Parliament, he would not have  incurred the disqualification as provided in Sub-section (3) of Section  8 of the Act, for a period of 3 months and if within that period he had  filed an appeal until the decision of the appeal. Therefore, the  appellant could have easily avoided the incurring of the  disqualification by filing an appeal within three months from the date  of his conviction by the High Court.  However, he chose to resign  from the membership of the Lok Sabha soon after he was convicted  by the High Court and wants to seek a fresh mandate by contesting the  election.   

3.      Before proceeding further it may be seen whether there is any  provision which may enable the Court to suspend the order of  conviction as normally what is suspended is the execution of the  sentence.  Sub-section (1) of Section 389 says that pending any appeal  by a convicted person, the appellate Court may, for reasons to be  recorded by it in writing, order that the execution of the sentence or  order appealed against be suspended and, also, if he is in confinement,  that he be released or bail, or on his own bond.  This Sub-section  confers power not only to suspend the execution of sentence and to  grant bail but also to suspend the operation of the order appealed  against which means the order of conviction.   This question has been  examined in considerable detail by a Three Judge Bench of this Court  in Rama Narang v. Ramesh Narang & Ors. (1995) 2 SCC 513 and  Ahmadi, C.J., speaking for the Court, held as under (para 19 of the  reports) :-  "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 disqualification of the type mentioned  in Section 267 of the Companies Act, we see no reason

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why we should give a narrow meaning to Section 389(1)  of the Code to debar the court from granting an order to  that effect in a fit case. The appeal under Section 374 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  the conviction and sentence and, therefore, we see no  reason to place a narrow interpretation on Section 389(1)  of the Code not to extend it to an order of conviction,  although that issue in the instant case recedes to the  background because High Courts can exercise inherent  jurisdiction under Section 482 of the Code if the power  was not to be found in Section 389(1) of the Code. We  are, therefore, of the opinion that the Division Bench of  the High Court of Bombay was not right in holding that  the Delhi High Court could not have exercised  jurisdiction under Section 482 of the Code if it was  confronted with a situation of there being no other  provision in the Code for staying the operation of the  order of conviction. In a fit case if the High Court feels  satisfied that the order of conviction needs to be  suspended or stayed so that the convicted person does not  suffer from a certain disqualification provided for in any  other statute, it may exercise the power because  otherwise the damage done cannot be undone; the  disqualification incurred by Section 267 of the  Companies Act and given effect to cannot be undone at a  subsequent date if the conviction is set aside by the  Appellate Court. But while granting a stay or suspension  of the order of conviction the Court must examine the  pros and cons and if it feels satisfied that a case is made  out for grant of such an order, it may do so and in so  doing it may, if it considers it appropriate, impose such  conditions as are considered appropriate to protect the  interest of the shareholders and the business of the  company."

       The aforesaid view has recently been reiterated and followed by  another Three Judge Bench in Ravi Kant S. Patil v. Sarvabhouma S.  Bagali JT 2006 (1) SC 578.  After referring to the decisions on the  issue, viz., State of Tamil Nadu v. A. Jaganathan (1996) 5 SCC 329,  K.C. Sareen v. C.B.I., Chandigarh (2001) 6 SCC 584, B.R. Kapur v.  State of T.N. & Anr. (2001) 7 SCC 231 and State of Maharashtra v.  Gajanan & Anr. (2003) 12 SCC 432, this Court concluded (para 12.5  of the report) : "All these decisions, while recognizing the power to stay  conviction, have cautioned and clarified that such power  should be exercised only in exceptional circumstances  where failure to stay the conviction, would lead to  injustice and irreversible consequences."  

  The Court also observed :- "11.   It deserves to be clarified 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 effect 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. \005\005.."

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       The legal position is, therefore, clear that an appellate Court can  suspend or grant stay of order of conviction. But the person seeking  stay of conviction should specifically draw the attention of the  appellate Court to the consequences that may arise if the conviction is  not stayed.  Unless the attention of the Court is drawn to the specific  consequences that would follow on account of the conviction, the  person convicted cannot obtain an order of stay of conviction.    Further, grant of stay of conviction can be resorted to in rare cases  depending upon the special facts of the case.  

4.      In the present case the appellant has sought the stay or  suspension of the order of conviction passed against him by the High  Court on the ground that he was a sitting Member of Parliament on  the date of the conviction and though he would not have incurred any  disqualification and could have continued to remain as Member of  Parliament by merely filing an appeal within three months and the  protection would have enured to his benefit till the decision of the  appeal but in order to set high standards in public life he immediately  resigned form the membership of the Lok Sabha.   He now wants to  seek a fresh mandate from the electorate and wants to contest the  election for membership of the Lok Sabha which is due to take place  shortly on account of his resignation.   Keeping in view the said fact  the present application needs consideration.   

5.      At this stage it is necessary to refer to the broad features of the  case and the evidence which is available on the record.   The case of  the prosecution, in brief, is that at about 12.30 p.m. on 27.12.1988  Gurnam Singh (deceased) along with P.W.3 Jaswinder Singh and  P.W.4 Avtar Singh were going to State Bank of Patiala for  withdrawing some money for the forthcoming marriage of the son of  the deceased.   When the Maruti car which was being driven by  Gurnam Singh reached near Sheranwala Gate Crossing, a Gypsy  bearing No.PAD-6030 was found standing ahead of them. When  Gurnam Singh tried to overtake the Gypsy, it turned and blocked the  way, on which Gurnam Singh and others asked the occupants of  Gypsy to move their vehicle.  On this the appellant Navjot Singh  Sidhu got out of the Gypsy vehicle and after abusing the occupants of  the Maruti car, dragged out Gurnam Singh and gave fist blows to him.   P.W.3 Jaswinder Singh wanted to save Gurnam Singh but co-accused  Ravinder Singh Sandhu, who was also in the Gypsy, came out and  gave fist blows to him as well.  Thereafter, the appellant and co- accused Ravinder Singh Sandhu escaped in the Gypsy taking away the  keys of the Maruti car.   Gurnam Singh had fallen down and he was  taken to Rajindra Hospital by Avtar Singh and Jaswinder Singh,  where the doctors declared him dead.  Jaswinder Singh then lodged an  FIR of the incident at 1.30-1.45 p.m. at P.S. Kotwali.  The inquest was  held on the body of the deceased and in the inquest report the  statements of Jaswinder Singh and Avtar Singh were also recorded.   After investigation of the case, the police submitted charge sheet only  against Ravinder Singh Sandhu and the name of the appellant was  mentioned in Column no.2.   The learned Additional Sessions framed  charge under Section 304 Part I IPC against Ravinder Singh Sandhu  and after some evidence had been recorded including that of P.W.3  Jaswinder Singh, an order was passed under Section 319 Cr.P.C.  whereby the appellant was summoned to stand trial.   Jaswinder Singh  had also filed a criminal complaint against both the accused on which  cognizance was taken and they were committed to the Court of  Sessions.  In the trial the prosecution examined two witnesses of fact  viz., P.W.3 Jaswinder Singh and P.W.4 Avtar Singh, besides the  doctors and other formal witnesses.   In his statement under Section  313 Cr.P.C. the appellant denied the prosecution case and stated that  at the time of the incident he was present in his office (the Head  Office of the State Bank of Patiala, Mall Road). He heard some  commotion and then came out and saw that a scooterist and a driver of  the truck were quarreling and shouting over each other.   When he

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reached the spot, he found that a sikh gentleman was lying on the  ground after suffering a heart attack.   He tried to pacify the people.    However, being a cricketer of international fame, he became centre of  attraction of the people and on suspicion he was involved in the case.   He also examined a defence witness, viz., D.W.1 Rajbir Singh, who  corroborated the version of the appellant.  

6.      Learned counsel for the appellant has submitted that the learned   Sessions Judge had given good reasons for acquitting the accused and  the High Court has committed manifest error of law in reversing the  finding of acquittal and in convicting the appellant.   He has submitted  that in the site plan prepared by the Investigating Officer, the Maruti  car, which was allegedly being driven by the deceased, was not at all  shown nor any evidence has come on record to show as to how the car  was removed from the spot.   The prosecution has later on come with  a case that a duplicate key was prepared by a mechanic by which the  car was started but no evidence in that regard has been produced nor  the said mechanic has been examined as a witness and this completely  falsifies the prosecution case.  It has also been urged that the medical  evidence on record does not at all disclose  commission of an offence  under Section 304 Part II IPC and even if the prosecution version of  the incident is accepted in toto, it may at best amount to a case under  Section 323 IPC in which the maximum sentence which can be  awarded is 1 year R.I.  and in such circumstances the appellant would  not incur any disqualification under Sub-section (3) of Section 8 of  the Act.   

7.      Though for the purpose of decision of the prayer made by the  appellant for staying or suspending the order of conviction, it is not  necessary to minutely examine the merits of the case, nevertheless we  consider it proper to refer to the medical evidence, which has an  important bearing on the nature of the offence alleged to have been  committed by the appellant.   

8.      P.W.3 Jaswinder Singh was medically examined at 8.30 p.m.  on 27.12.1988 and his medical examination report reads as under :- 1.      The patient complained of pain over the left side of the  fore-head and slight giddiness.  Tenderness was present.  

2.      Patient complained of pain over the right and left flanks.   He was advised to be kept under observation and was  referred to Rajindra Hospital, Patiala.  

PW.1 Dr. Jatinder Kumar Sadana conducted post-mortem  examination on the body of the deceased Gurnam Singh at 4.30 p.m.  on 27.12.1988 and found the following injuries on his person :- 1.      An abrasion 0.75 cm x 0.5 cm over the left temporal  region at the junction of upper part of pinna.

2.      An abrasion 0.5 cm x 0.5 cm over the front of left knee.  On opening the skull subdural haemorrhage was found present  on the left temporal region.  The doctor was unable to give the cause  of death and deferred his opinion till the receipt of the report of the  Pathological examination.   He sent the lungs, heart, part of liver,  spleen and kidneys for Pathological examination to Medical College,  Patiala.   In his cross-examination the doctor stated that there was no  fracture under injury no.1 and the possibility could not be ruled out  that the said injury may have been received by a fall on the ground.    He further stated that there was no external injury on the front part  except the subdural haemorrhage and that subdural haemorrhage is  not fatal in all cases.   The Pathological Report showed that the  deceased had a very weak heart and his main arteries were blocked.   Thereafter, a Board of Doctors was constituted which consisted of  seven doctors. Dr. Krishan Vij, Professor and Head of the Department  of Forensic Medicines, Government Medical College, Chandigarh,

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who was member of the Board appeared as a witness and he gave his  opinion Ex.PA which reads as under :- "Death in this case is attributed to the effects of head  injury and cardiac condition.   However, the head injury  itself could be sufficient to cause death in the ordinary  course of nature."

       In his cross-examination, he states thus : "It is correct that an abrasion is hardly of any  significance from the point of view of loss of life.  Injury  No.1 was an abrasion only."

       He also stated that the condition of the heart of the deceased  was abnormal at the time of the post-mortem examination as it  suffered from various ailments mentioned in the report of the  Pathologist.   He further stated that Dr. Gurpreet Singh, Head of the  Department of Cardiology was of the view that the cardiac condition  as reported by the Pathologist could also result in sudden cardiac  death under stress.   

9.      Some observations made by the learned Sessions Judge  regarding the head injury sustained by the deceased deserve notice  and they read as under :- "Furthermore, the all important blow on the head of  Gurnam Singh was not specifically described in either  Ex.PQ (FIR) or Ex.DB (Jaswinder Singh’s statement  dated January 20 1993, recorded by the Addl. Sessions  Judge Patiala at the pre 319 Cr.P.C. stage).  This was an  important omission since it was the injury on the head  which was alleged to be one of the causes of death\005.."

       The High Court has not adverted to this aspect of the case, viz,  that in the FIR it was not specifically mentioned that the appellant  Navjot Singh Sidhu had given the blow on the head of the deceased.   This fact was also not stated by Jaswinder Singh in his statement  before the learned Sessions Judge which was recorded on 20.1.1993  before the order had been passed under Section 319 Cr.P.C.  summoning the appellant.   

10.     We have pointed out above the broad features of the case.   The  incident happened all of a sudden without any pre-meditation.  The  deceased was wholly unknown to the appellant. There was no motive  for commission of the crime.  The accused are alleged to have lost  temper and started giving abuses on account of objection raised by the  occupants of the Maruti car due to obstruction being caused by the  vehicle of the appellant.  Blows by fist are alleged to have been given  and no weapon of any kind has been used.   The medical evidence  shows that the deceased had a diseased heart.   The doctor who  performed the post-mortem examination was unable to give the cause  of death.   The Medical Board gave its opinion after nearly a fortnight  and that too does not ascribe the death due to any external injury but  says "effects of head injury and cardiac condition."   The medical  evidence does not conclusively establish that the death occurred due  to blow given on the head.  If in the FIR, which is the earliest version,  and, also in his statement in Court which was recorded after more than  4 years on 20.1.1993, Jaswinder Singh did not assign any role of  causing injury on the head of the deceased to the appellant, whether  his subsequent statement  given after several years, wherein he  assigned the specific role to the appellant of hitting the deceased on  the head by a fist and thereby making him responsible for causing the  death of the deceased should be believed, will certainly require  consideration at the time of hearing the appeal.  If the statement which  Jaswinder Singh gave after several years wherein he attributed the  head injury to the appellant is not accepted for the reason that it is at

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variance with the version in the FIR and his earlier statement, the  appellant cannot be held guilty under Section 304 Part II IPC.   These  features of the case which touch upon the culpability of the appellant,  prima facie appear to be in his favour.  Another feature which has a  bearing is that the findings on factual aspects of the case recorded in   favour of the appellant by the learned Sessions Judge resulting in  acquittal have been reversed in appeal by the High Court.

11.     The incident took place on 27.12.1988.  It has no co-relation  with the public life of the appellant which he entered much later in  2004 when he was elected as a Member of the Parliament.  It is not a  case where he took advantage of his position as M.P. in commission  of the crime.   As already stated, it was not necessary for the appellant  to have resigned from the membership of the Parliament as he could  in law continue as M.P. by merely filing an appeal within a period of  3 months and had he adopted such a course he could have easily  avoided incurring any disqualification at least till the decision of the  appeal.  However, he has chosen to adopt a moral path and has set  high standards in public life by resigning from his seat and in seeking  to get a fresh mandate from the people.  In the event prayer made by  the appellant is not granted he would suffer irreparable injury as he  would not be able to contest for the seat which he held and has fallen  vacant only on account of his voluntary resignation which he did on  purely moral grounds. Having regard to the entire facts and  circumstances mentioned above we are of the opinion that it a fit case  where the order of conviction passed by the High Court deserves to be  suspended.   

12.     Shri Sushil Kumar, learned senior counsel for the State of  Punjab has submitted that the case in hand cannot be called as a rare  case where an order for suspension of conviction should be passed.    Learned counsel has also submitted that the appellant having given up  his rights under Sub-section (4) of Section 8 of the Representation of  the People Act and having himself resigned from the membership of  the Parliament, cannot again come back to the Parliament until the  appeal is decided in his favour. In our opinion the contentions raised  have no substance.  The broad features of the case which impel us to  grant the order in favour of the appellant have already been discussed  earlier and it is not necessary to repeat the same.  The argument that  the appellant having given up his right under Sub-section (4) of  Section 8 should not be permitted to offer himself as a candidate,  again is wholly misconceived. If a person convicted of any offence  enumerated in Sub-sections (1), (2) and (3) of Section 8  of the Act  files an appeal within three months he continues to remain a Member  of Parliament or Legislature of a Sate on the basis of protection  afforded by Sub-section (4), but not on any moral authority because  the electorate had exercised their franchise prior to the order of  conviction and not when he had become a convict.   But a person who  resigns from the Parliament or the Assembly and  seeks a re-election,  if elected, will have greater moral authority to represent the  constituency.  Therefore, it is not possible to accept the contentions  raised by Shri Sushil Kumar.  

13.     Shri Rakesh Dwivedi, learned senior counsel for the  complainant has submitted 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 offence should not be  allowed to enter the Parliament. He has elaborated his argument by  submitting that irrespective of quantum of sentence if a person is  convicted for an offence referred to in Sub-section (1) of Section 8  where the punishment imposed may be only a fine, a person will incur  the disqualification from the date of conviction which will remain for  a period of six years and this evinces the intention of the Legislature  that a convict should not enter the precincts of Parliament or  Legislature of a State.  In our opinion the contention raised cannot be

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accepted. The Representation of the People Act, 1951 is a complete  Code.  The preamble of the Act is  \026  An Act to provide for the conduct of elections to the Houses of  Parliament and to the House or Houses of the Legislature of each  State, the qualifications and disqualifications for membership of those  Houses, the corrupt practices and other offences at or in connection  with such elections and the decision of doubts and disputes arising out  of or in connection with such elections.    

The Act provides not only the eligibility and qualification for  membership of the House of People and Legislative Assembly but  also for disqualification on conviction and other matters. The  Parliament in its wisdom having made a specific provision for  disqualification on conviction by enacting Section 8, it is not for the  Court to abridge or expand the same.  The decisions of this Court  rendered in Rama Narang v. Ramesh Narang & Ors. (supra) and Ravi  Kant S. Patil v. Sarvabhouma S. Bagali (supra) having recognized the  power possessed by the Court of appeal to suspend or stay an order of  the conviction and having also laid down the parameters for exercise  of such power, 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  offence from entering the Parliament or the Legislative Assembly the  order of the conviction should not be suspended.   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.   

14.     Shri Rakesh Dwivedi has also submitted that once an accused  has been convicted and sentenced, it is only the execution of the  sentence which can be suspended and the order of conviction cannot  be suspended or stayed as the same is not capable of being stayed or  suspended.   For this reliance is placed on certain observations made  in paras 34 and 44 of the decision rendered in B.R. Kapur v. State of  T.N. & Anr. (2001) 7 SCC 231 and on paras 42, 43, 53 and 54 in K.  Prabhakaran v. P. Jayarajan (2005) 1 SCC 754.  The contention is   that the appellant would not be absolved of the disqualification even if  an order of suspension or stay of the conviction is passed by this  Court.   We are dealing here with the limited question, viz., the prayer  made by the appellant for suspending or staying the order of  conviction.  We are not required to adjudicate upon the question as to  what will be the effect of the order and further whether he will  continue to be disqualified for the purpose of contesting the election  even if the prayer made by the appellant is granted as such an issue is  wholly alien to the present controversy which can arise only in an  election petition where the validity of the election may be called in  question.   

15.      Lastly, Shri Dwivedi has submitted that in view of the law laid  down in State of Tamil Nadu v. A. Jaganathan (1996) 5 SCC 329 and  K.C. Sareen v. C.B.I., Chandigarh (2001) 6 SCC 584 the order of  conviction passed against the appellant should not be suspended.   The  cases cited have no application to the facts of the present case as  both  of them related to conviction on  charges of corruption and in that  context it was observed that when conviction is on a corruption  charge, it would be a sublime public policy that the convicted person  is kept under disability of the conviction instead of keeping the  sentence of imprisonment in abeyance till the disposal of the appeal.    In such cases it is obvious that it would be highly improper to suspend  the order of conviction of a public servant which would enable him to  occupy the same office which he misused.  This is not the case here.

16.     For the reasons discussed above, we are of the opinion that the  application moved by the appellant deserves to be allowed.   The   order of conviction passed against the appellant by the High Court on  1.12.2006 and the sentence awarded on 6.12.2006 are suspended and  the conviction shall not be operative till the decision of the appeal.