Sanjay Dutt Vs. State
of Maharashtra Tr.Cbi,Bombay [2009] INSC 673 (31 March 2009)
Judgment
CRIMINAL APPELLATE
JURISDICTION CRL.M.P. NOS. 4087, 5229, 5230,5237 & 5314 OF 2009 IN CRIMINAL
APPEAL NO. 1060 OF 2007 VERSUS
K.G. BALAKRISHNAN,
CJI :
The petitioner
herein, the 117th accused in Special Case No. 1/93 (Bombay Blast Case) before
the Special Judge, TADA (Mumbai), was charged under various Sections of
Terrorist and Disruptive Activities (Prevention) Act (TADA) such as Section
3(3), Section 5 and Section 6 and also for the offence under Section 3 and
Section 7 read with Sections 25 (1A) and 25(1B) of the Arms Act, 1959.
The petitioner was found guilty of offences punishable under Section 3 and
Section 7 read with Sections 25(1A) and 25(1B) of the Arms Act and was
sentenced to six years rigorous imprisonment.
The petitioner has
filed appeal against his conviction and sentence and that appeal is pending
consideration before this Court. Pending consideration of that appeal, the
petitioner was granted bail on 28.2.2007.
Crl,M.P. No. 4087 of
2009 has been filed by the petitioner under Section 389 of the Code of Criminal
Procedure, 1973 (Cr.P.C.) praying that execution of the order of conviction and
sentence be suspended pending final hearing of the appeal. In the petition it
is stated that he belongs to a family which has been in long public service in
the country and the petitioner is now desirous of contesting election to the
House of People from Lucknow Parliament Constituency and in view of Section
8(3) of the Representation of People Act, 1951, he has incurred
disqualification from contesting the election for becoming a member of either
House of Parliament. Therefore, it is prayed that the conviction and sentence
of the petitioner be suspended to enable him to contest the election.
We have heard Shri
Harish N. Salve, learned senior counsel, appearing for the petitioner and Shri
Gopal Subramanium, learned Additional Solicitor General of India, appearing for
the Central Bureau of Investigation (CBI) opposing the petition. Some third
parties have also filed intervention applications. These parties were given
opportunity to address their arguments even though we have not allowed any of
these intervention applications as it is a Criminal Miscellaneous Petition.
The learned counsel
appearing for the petitioner drew our attention to the extracts of the judgment
passed by the learned Special Judge and elaborately argued that the petitioner
was not part of the criminal conspiracy charged against him. He has been
acquitted by the Special Judge for the offence under Sections 3 and 5 of the
TADA and no appeal has been filed against that by the State and the conviction
is only under Sections 3 and 7 read with Sections 25(1A) and 25 (1B) of the Arms
Act. It was argued that the conviction itself for the above offences are based
on alleged confession made by the petitioner which was not strictly admissible
under the law. It was also contended that the alleged possession of the weapon
by the petitioner was much prior to the criminal conspiracy allegedly hatched
by other accused. The learned counsel for the petitioner also drew our
attention to the fact that though under Section 12 of the TADA the Designated
Court, when trying any offence, was competent to try any other offence with
which the accused may, under Cr.P.C., be charged at the same trial if the
offence is connected with such other offence. It was argued that the finding of
the Designated Court would show that offence, if any, allegedly found against
the petitioner was not even connected with other offences for which other
accused were charged and, in that event, Section 15 of the TADA itself would
not be attracted and the confession allegedly made by the petitioner to the
police officer was not admissible. The learned counsel further argued that some
of the observations made by the Constitution Bench of this Court in Prakash
Kumar vs.
State of Gujarat,
(2005) 2 SCC 409, require slight clarification. The learned counsel further
pointed out that the petitioner has got fair chance of appeal filed by him
being allowed and, if the conviction and sentence is not suspended, he would be
seriously prejudiced. He placed reliance on the decisions of this Court in
Navjot Singh Sidhu vs. State of Punjab & Anr, (2007) 2 SCC 574, and Rama
Narang vs. Ramesh Narang, (1995) 2 SCC 513.
The learned
Additional Solicitor General appearing for the CBI contended that the
conviction and sentence could be suspended only in exceptional circumstances
and the petitioner in this case is not entitled to any such relief in view of
the serious crime allegedly committed by him. It was argued that under Section
8(3) of the Representation of People Act, 1951, any person who has been
convicted of any offence and sentenced to imprisonment for not less than two
years, except 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. Therefore, it
is argued, when there is an express prohibition of law from contesting the
election, the relief prayed for by the petitioner may not be accepted in the
facts and circumstances of the present case.
We have carefully
considered the contentions advanced by the petitioner. The petitioner has been
convicted for serious offences. Of course, his conviction and sentence have been
challenged before this Court in an appeal. Though our attention was drawn to
the various findings recorded by the Special Judge and also the nature of
evidence adduced by the prosecution, we do not propose to consider these facts
at this stage as it may seriously prejudice either of the parties when the
appeal filed by the petitioner is considered by this Court.
The petitioner is a
well-known cine artist and because of his contribution to art and cinema he has
got large number of fans throughout the country and abroad. His father was
also a well-known film actor and he was deeply involved in politics.
At one point of time,
petitioner's father was Minister in the Union Cabinet. The petitioner is not a
habitual criminal nor it has been brought to our notice that he had involved in
any other criminal case. Despite all these favourable circumstances, we do not
think that this is a fit 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 offence and sentenced to imprisonment for not less than two
years from contesting the election and such person shall be disqualified 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 Cr.P.C. shall be exercised only under
exceptional circumstances.
The learned counsel
appearing for the petitioner has placed reliance on the decision of this Court
in Navjot Singh Sidhu's case (supra). But in that case, the petitioner was a sitting
MP and he could have continued as an MP even after his conviction and sentence
in view of Section 8(4) of the Representation of People Act, 1951. The
petitioner in Navjot Singh Sidhu's case (supra) resigned and expressed his
desire to contest the election. In fact, that was a case where the trial court
acquitted the petitioner and the High Court, in reversal, found the petitioner
guilty. It was in those circumstances this Court granted stay of the order of
conviction and sentence in that case.
In the present case,
no such circumstances are in favour of the petitioner. In view of the serious
offence 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. We make it clear that we do not express any opinion on the
merit and, if any of the observations made in this order, even it has remote
possibility to prejudice either parties, we state that the same is only made
for the purpose of disposal of Cr.M.P. No. 4087 of 2009- application for
suspension/stay of conviction.
In the result,
Cr.M.P. Nos. 4087/2009, 5229/2009, 5230/2009, 5237/2009 and 5314/2009 are
dismissed.
.......................................CJI
( K.G. BALAKRISHNAN)
.........................................J.
( P. SATHASIVAM )
.........................................J.
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