Navjot Singh Sidhu vs State Of Punjab & Anr on 23 January, 2007

Supreme Court of India

Navjot Singh Sidhu vs State Of Punjab & Anr on 23 January, 2007
Author: G P Mathur
Bench: G.P. Mathur, R.V. Raveendran
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

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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.

(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) :-

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"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. 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. .."

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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

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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. 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

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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, 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 .."

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

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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.

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

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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 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.

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.

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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.

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