Singh Sidhu Vs. State of Punjab & Anr  Insc 69 (23 January 2007)
Mathur & R.V. Raveendran 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.
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 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.
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.
(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.
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 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.
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.
of T.N. & Anr. (2001) 7 SCC 231 and State of Maharashtra v.
& Anr. (2003) 12 SCC 432, this Court concluded (para 12.5 of the report) :
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. .." 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.
grant of stay of conviction can be resorted to in rare cases depending upon the
special facts of the case.
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.
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
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.
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.
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
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.
being a cricketer of international fame, he became centre of attraction of the
people and on suspicion he was involved in the case.
also examined a defence witness, viz., D.W.1 Rajbir Singh, who corroborated the
version of the appellant.
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.
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.
Singh was medically examined at 8.30 p.m.
and his medical examination report reads as under :-
complained of pain over the left side of the fore-head and slight giddiness.
Tenderness was present.
complained of pain over the right and left flanks.
advised to be kept under observation and was referred to Rajindra Hospital, Patiala.
Dr. Jatinder Kumar Sadana conducted post-mortem examination on the body of the
deceased Gurnam Singh at 4.30
27.12.1988 and found the following injuries on his person :-
An abrasion 0.75
cm x 0.5 cm over the left temporal region at the junction of upper part of pinna.
An abrasion 0.5
cm x 0.5 cm over the front of left knee.
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
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.
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, 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 :
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
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.."
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.
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.
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 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.
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.
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.
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.
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
accepted. The Representation of the People Act, 1951 is a complete Code. The
preamble of the Act is 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.
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.
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.
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.
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.
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.
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.