Judgment:
Sheema Ali Khan, J.
1. The prayer in I.A. No. 178 of 2009 is to release the appellant on bail in Sessions Trial No. 67 of 2004 after the appeal was admitted on 30.05.2007 and I.A. No. 505 of 2009 has been filed for suspending the conviction and sentence under Section 389(1) of the Code of Criminal Procedure.
2. The appellant is convicted to undergo rigorous imprisonment for life and a fine of Rs. 10,000/-, in default of payment of fine, the appellant has to further undergo simple imprisonment for one year for the offence which have been committed under Section 364/34 of the Indian Penal Code.
3. The appellant had moved this Court during the pendency of the appeal for bail on 08.03.2007 and on 25.08.2008. While rejecting the prayer for bail on 25.08.2008, this Court had observed that on considering the earlier order and 'all the facts, the prayer for bail of the appellant is again rejected at this stage'. This Court has also directed for the expeditious hearing of the appeal.
4. Before discussing the arguments advanced on behalf of the appellant for grant of bail and also for suspending the sentence, it would be relevant to state in brief the prosecution case. It has been alleged by the informant Shital Paswan that on 16.02.1999 he along with one Chote Lal Gupta had gone to visit the S.D.O. at Siwan and while returning they found the car of the M.P. Shahabuddin parked near the Aandar dhala railway crossing' and also saw that three persons armed with rifles standing outside the car of the M.P. Chote Lal Gupta observed that they should leave the place immediately as the car of Shahabuddin was parked near the dhala railway crossing. In the mean time, one of the men from the car of the M.P. asked Chote Lal Gupta to accompany him and Chote Lal Gupta is said to have sat in the front seat of the car of the M.P. The car drove away and thereafter there has been no trace of Chote Lal Gupta. The First Information Report was lodged two days after the alleged occurrence.
5. Mr. Surendra Prasad Singh, learned Senior Advocate appearing on behalf of the appellant is praying for bail and suspension of the order of conviction on three grounds. The first ground relates to the merits of the case. The second ground is that the appellant is in custody since 07.11.2005 in this case and thirdly, it has been submitted that the appellant has a good prima facie case and as such he has a good chance to be acquitted or in the alternative may be awarded a lessor sentence of ten years rigorous imprisonment in this case. Lastly, it has been argued that the conviction should be suspended as the appellant would suffer irreparable loss as he would be disqualified to contest in the coming Lok Sabha Elections.
6. I shall first deal with the arguments made with respect to the merits of the case. It has been argued by Mr. Surendra Prasad Singh, Senior Counsel that the entire conviction is based on the solitary evidence of Shital Paswan (PW 1) as contained in Annexure-3. Referring to the evidence of Shital Paswan and the First Information Report, it has been pointed out that the evidence does not reveal that Shital Paswan knew Md. Shahabuddin by face. Infact at paragraph No. 29 he has stated that he did not know the appellant nor could identify the car prior to the day of occurrence. He has specifically stated that Chote Lal told him that the vehicle belonged to M.P. Saheb. Again at paragraph No. 31, the witness states that there were seven persons sitting in the car. Chote Lal and two others sat in the front of the car.
7. From the evidence aforesaid, it appears that in fact Chote Lal did not specifically point out Md. Shahabuddin amongst the persons present in the car. It has, therefore, been submitted that the evidence of Shital Paswan does not inspire confidence and the appellant could not have been convicted on the basis of the aforesaid solitary evidence.
8. On the basis of the evidence aforesaid, it has been submitted that no offence under Section 364 of the Indian Penal Code is made out against the appellant. It has been argued that the facts do not disclose that Chote Lal Gupta was forcibly taken to meet M.P. Saheb or that deceitful means were used to take Chote Lal Gupta to meet the M.P. Admittedly, Chote Lal Gupta has not been traced till today. The submission therefore is that the prosecution must not only prove that Chote Lal Gupta was forcibly abducted but must also show that the abduction took place as a result of a plan to murder and the person so abducted was himself deceived and was induced to go with the abductors. It is submitted that the appellant on the basis of the aforesaid evidence has remained in custody since 07.11.2005. It was further argued that infact the evidence does not disclose the name of M.P. Saheb rather he has been referred to as 'M.P. Saheb' which according to the learned Counsel is not sufficient for the purpose of identifying the appellant with the said crime. It has also been argued that the identification of Md. Shahabuddin in the dock is after a period of seven years and as such has no value in the eyes of law. Above all, it has been submitted that no motive has been disclosed by any of the witnesses to substantiate the claim that Chote Lal was abducted with an intention to commit his murder. As such, it is submitted that the evidence is insufficient to convict the appellant.
9. On the basis of the aforesaid arguments, learned Counsel submits that the appellant has a very good case on merits and as such this Court ought to reconsider the prayer for bail, taking into consideration the facts that on the earlier occasion, the Court had rejected the bail of the appellant with an observation that it was being rejected at this stage.
10. I find that the contentions raised on behalf of the appellant, lead me to the conclusion that prima facie, the learned Counsel for the appellant has been able to raise doubts with respect to the evidence of the sole eye-witness PW 1. However, these observations are only for the purpose of grant of bail keeping in view that the appellant has remained in custody since 07.11.2005.
11. The aforesaid arguments have also been advanced to persuade this Court to suspend the conviction awarded to the appellant along with the main thrust of the argument which is that the appellant would be deprived of the right to contest the 15th Lok Sabha Elections which would result in irreparable loss to the appellant.
12. The prayer of the appellant for suspending the conviction was vehemently opposed by Mr. S. Dayal, Special Public Prosecutor appearing on behalf of the State in this case. Mr. Dayal submitted that Sub-section 5 of Section 62 of the Representation of the People Act, 1951 which provides that if any person who is confined in a prison for serving a sentence of imprisonment or transportation for any offence or who is under the lawful confinement in person or police custody for any reason is not entitled to vote for the election. By virtue of Sub-section 5 of Section 62 of the R.P. Act, the appellant is not entitled to vote after conviction must less offer himself as a candidate for the elections. These principles and provisions are in public interest meant for maintaining the purity in electing the peoples' representation. This proposition has been enunciated in the case of Mahendra Kumar Shastri v. The Union of India and Anr. reported in : AIR1983SC299 .
13. A counter affidavit has been filed wherein it has been stated at paragraph 8 that the appellant has been convicted in six cases including the present one. Apart from this, a chart has been provided to show that the appellant is accused in 23 other cases. It may be fairly mentioned here that those cases are of Magisterial trial. On the basis of these facts, it has been argued by Mr. Dayal that a person with the criminal records such as that possessed by the appellant, is not a fit person and it would not be in the public interest, to allow such a person to canvass that his conviction and the sentence should be suspended, as he would suffer irreparable loss by virtue of not being able to contest in the coming Lok Sabha Elections.
14. On behalf of the appellant, the attention of this Court was drawn to the two judgments of the Apex Court in the cases of Rama Narang v. Ramesh Narang and Ors. reported in : [1995]1SCR456 and Navjot Singh Sidhu State of Punjab reported in : 2007CriLJ1427 . In the case of Rama Narang, the Managing Director of the Company, had been involved in the offence of moral turpitude and was convicted under Sections 120B and 420 read with Section 114 of the Indian Penal Code. The conviction disqualified him from holding the post of the Managing Director of the Company as it was in violation of Section 267(c) of the Companies Act, 1956. The Delhi High Court had granted the suspension of the conviction and sentence while hearing the criminal appeal. The matter came before the Supreme Court as to whether the appellant is liable to be visited with the consequence of Section 267 of the Companies Act not withstanding the interim order passed by the Delhi High Court while admitting the appellant appeal against conviction and imposition of sentence to be appointed as Managing Director of M/s Narang International Hotels Private Limited. Referring to the order passed by the Delhi High Court, the Supreme Court has observed that the appellant before the Delhi High Court while praying for staying his conviction had not brought to the notice of the Delhi High Court, the provisions of Section 267 of the Companies Act and as such the order passed by the Delhi High Court could not have been read in that context and would not have been intended to stay the operation under Section 267 of the Companies Act. After rejecting the claim of the Managing Director with respect to the staying the conviction vis-a-vis his disqualification under the Companies Act, the Apex Court examined whether the appellate Court had the authority to pass the order staying the operation of the conviction. The Supreme Court held that there is no doubt that the Appellate Court (in this case, Delhi High Court) has power to suspend the conviction of a person specially if the person would suffer some irreparable loss but the power has to be exercised after considering all aspects of the matter and in exceptional cases. Similar view has been expressed by the Supreme Court in the case of Navjot Singh Sidhu. However, the facts of the case would reveal that Navjot Singh Sidhu had remained in the public life and had set high morale values for himself. It is also stated that the facts of the case were different and that the moment Navjot Singh Sidhu was convicted, he resigned from the Lok Sabha considering the nature of the evidence and the fact that the order of the Sessions Judge resulting into the acquittal had been reversed in the appeal by the High Court, the conduct of the appellant before the Supreme Court and the evidence led in the case, the Supreme Court had found it a fit case in which the conviction should be suspended. The Supreme Court has held that the Court should suspend the consequence which arise after conviction in 'rare' cases.
15. On the basis of the aforesaid two judgments, it can not be said that the appellant would be entitled to the suspension of his conviction and the facts are distinguishable. Although, the appellant may have an arguable case but I have to take into account the fact that the appellant has been convicted in six cases, although granted bail in one of them and is facing conviction in several others as mentioned above. As stated, I do not think that the appellant has made out a case for suspension of the sentence awarded to him.
16. In the result, the I.A. No. 505 of 2009 is dismissed and I.A. No. 178 of 2009 is allowed.
17. The appellant Md. Shahabuddin is directed to be released on bail in Sessions Trial No. 67 of 2004 on furnishing bail bond of Rs. 10,000/- with two sureties of the like amount each to the satisfaction of Shri Gyaneshwar Srivastava, 1st Additional Sessions, Siwan, subject to the condition, that he will need to take permission of the High Court before leaving the district of Siwan. This condition will be operative till the trial of cases pending against him at Siwan is concluded. Tampering with evidence in those cases may be viewed as a misuse of bail in the present case.
Shiva Kirti Singh, J.
I agree