# Banwari Lal Kanchhal v. State of U.P. Opp. Party

- **Citation:** (2023) 11 ILRA 408
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-28
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/banwari-lal-kanchhal-v-state-of-u-p-opp-party-49350
- **Pages:** 25

## Headnote

Amit Jaiswal Ojus Law, Ambrish Singh Yadav,
Nadeem Murtaza

Counsel
for
the
Opp.
Parties:
11 All. Banwari Lal Kanchhal Vs. State of U.P.
409
G.A., Vijay Dixit

Criminal Law - Indian Penal Code, 1860 -
Sections 332, 504 & 506 - Against order of
conviction and sentence - Allegation that
applicant, a traders' leader, caused hurt to
deter public servant is unsupported by
informant's
medical
report
and
uncorroborated by other witnesses - PW-5
confirmed
applicant
opposed
departmental
misdeeds
and
denied
animosity
allegations
-
On
overall
consideration, allegations do not prima
facie establish offence involving moral
turpitude - As per FIR, on 06.10.1991,
informant, a Sales Tax Officer, assaulted
in
his
office
by
applicant
and
his
companion, who also threatened to kill
him
if
vehicles
loaded
with
goods
intercepted - Medico-legal report records
complaints of pain on left side of face and
neck but no detectable injury, doctor gave
no opinion - FIR named applicant with 1012 other persons, charge-sheet filed only
against him, indicating alleged group
presence
was
not
established
in
investigation
-
PW-2,
admitted
in
cross-examination
that
none
of
accused
misbehaved
with
him,
no
incident occurred during his presence
in office - Informant named few
persons who were present, but PW4, PW-5 denied seeing applicant
abuse anyone, other persons not
examined
as
witnesses
-
Facts
ignored by Trial Court, applicant's
conviction stayed. (Para 60, 66, 67,
69, 71, 72, 73)

Application allowed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,912 of 84,355. This is a partial read: ask again with offset=39912 for what follows._

408 INDIAN LAW REPORTS ALLAHABAD SERIES
of rape are not uncommon. There have also
been rare instances where a parent has
persuaded a gullible or obedient daughter
to make a false charge of a rape either to
take revenge or extort money or to get rid
of financial liability. Whether there was
rape or not would depend ultimately on the
facts and circumstances of each case."

26. Recently, in Manak Chand @
Mani vs. State of Haryana, 2023 SC
Online SC 1399, in three Judge's Bench of
the Hon'ble Supreme Court while making
observation in the matters of false cases of
rape has held that:

"It cannot be lost sight of that rape
causes the greatest distress and humiliation
to the victim but at the same time a false
allegation of rape can cause equal distress,
humiliation and damage to the accused as
well. The accused must also be protected
against the possibility of false implication,
particularly where a large number of
accused are involved. It must, further, be
borne in mind that the broad principle is
that an injured witness was present at the
time when the incident happened and that
ordinarily such a witness would not tell a
lie as to the actual assailants, but there is
no presumption or any basis for assuming
that the statement of such a witness is
always
correct
or
without
any
embellishment or exaggeration."

27. Thus, considering the entire facts
and circumstances of the case, the
evidence as well as the law laid down
by the Hon'ble Apex Court in various
judgments
discussed
in
foregoing
paragraphs, we hold that in cases of a
false accusation of rape, the accused
must be protected from the indictment.

28. Hence, on the basis of the
discussions as above, we are of the view
that the prosecution has failed to prove its
case beyond reasonable doubt and the
appeal is liable to be allowed.

29. Accordingly, the appeal is
allowed. The impugned Judgment and
Order of conviction and sentence dated
30.10.2004 passed by Additional Sessions
Judge/ Fast Track Court-IV, Badaun in
Sessions Trial No. 438/1996 registered as
Case Crime No. 179/91, under Section 452
and 376 IPC, P.S. Mujariya, District
Badaun is hereby set aside. The appellants
Shamim, Shafiq and Khurshid are on
bail. Their bail bonds are cancelled and the
sureties are discharged.

30. Office is directed to transmit a
certified copy of this judgment and order to
the
concerned
Court
for
necessary
information. It is further directed that the
original record of the case be returned
forthwith which shall be kept safely by the
Trial Court.
----------
(2023) 11 ILRA 408
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 28.11.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Crl. Misc. Application U/S 389 (2) 1 of 2023

Banwari Lal Kanchhal ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Amit Jaiswal Ojus Law, Ambrish Singh Yadav,
Nadeem Murtaza

Counsel
for
the
Opp.
Parties:
11 All. Banwari Lal Kanchhal Vs. State of U.P.
409
G.A., Vijay Dixit

Criminal Law - Indian Penal Code, 1860 -
Sections 332, 504 & 506 - Against order of
conviction and sentence - Allegation that
applicant, a traders' leader, caused hurt to
deter public servant is unsupported by
informant's
medical
report
and
uncorroborated by other witnesses - PW-5
confirmed
applicant
opposed
departmental
misdeeds
and
denied
animosity
allegations
-
On
overall
consideration, allegations do not prima
facie establish offence involving moral
turpitude - As per FIR, on 06.10.1991,
informant, a Sales Tax Officer, assaulted
in
his
office
by
applicant
and
his
companion, who also threatened to kill
him
if
vehicles
loaded
with
goods
intercepted - Medico-legal report records
complaints of pain on left side of face and
neck but no detectable injury, doctor gave
no opinion - FIR named applicant with 1012 other persons, charge-sheet filed only
against him, indicating alleged group
presence
was
not
established
in
investigation
-
PW-2,
admitted
in
cross-examination
that
none
of
accused
misbehaved
with
him,
no
incident occurred during his presence
in office - Informant named few
persons who were present, but PW4, PW-5 denied seeing applicant
abuse anyone, other persons not
examined
as
witnesses
-
Facts
ignored by Trial Court, applicant's
conviction stayed. (Para 60, 66, 67,
69, 71, 72, 73)

Application allowed. (E-13)

List of Cases cited:

1. Rajnish Kumar Rai Vs U.O.I. & ors., 2023 SCC
OnLine SC 1222

2. Union Territory of Ladakh & ors. Vs Jammu
and Kashmir National Conference & anr., 2023
SCC OnLine SC 1140, (Para 35)

3. The Committee of Management, Dadar
Ashram Trust Society & ors. Vs Mahatma Gandhi
Kashi Vidyapeeth & ors. AIR 2017 All 60
4. K. Prabhakaran Vs P. Jayarajan, (2005) 1 SCC
754

5. Singhasan Singh Vs St. of U.P., 2007 SCC
OnLine All 1680 : 2008 (60) ACC 128

6. Navjot Singh Sidhu Vs St. of Punj., (2007) 2
SCC 574, (Paras 6, 21)

7. Radhey Shyam Vs St. of U.P., 2008 SCC
OnLine All 175

8. Rama Narang Vs Ramesh Narang, (1995) 2
SCC 513, (Paras 16, 19)

9. Annu Tandon Vs St., (2022) ILR 1 All 931

10. St. of Mah. Vs Gajanan & anr., (2003) 12
SCC 432

11. Ravikant S. Patil Vs Sarvabhouma S. Bagali,
(2007) 1 SCC 673

12. Ram Singh Vs Union of India, 2008 SCC
OnLine All 133 : (2008) 3 ADJ 723

13. Shyam Narain Pandey Vs St. of U.P., (2014)
8 SCC 909, (Para 6)

14. Vikram Singh Saini Vs St. of U.P., 2022 SCC
OnLine All 773

15. Rahul Gandhi Vs Purnesh Ishwarbhai Modi &
anr., 2023 SCC OnLine SC 929

16. St. of T.N. Vs A. Jaganathan, (1996) 5 SCC
329

17. Irfan & ors. Vs St. of U.P., 2009 (6) ADJ 177

18. K.C. Sareen Vs CBI, (2001) 6 SCC 584

19. Ravikant S. Patil Vs Sarvabhouma S. Bagali,
(2007) 1 SCC 673

20. Indra Pratap Tiwari Vs St. of U.P., (2021)
ILR 12 All 50

21.
Omprakash
Sahni
Vs
Jai
Shankar
Chaudhary, (2023) 6 SCC 123, (Para 33)

22. St. Bank of India Vs P. Soupramaniane,
(2019) 18 SCC 135, (Paras 13, 14, 16)
410 INDIAN LAW REPORTS ALLAHABAD SERIES
23. Sushil Kumar Singhal Vs Regional Manager,
Punj. National Bank, (2010) 8 SCC 573

24. Coopertative Central Bank Ltd. & ors. Vs
Additional Industrial Tribunal and other, (1969)
2 SCC 43

25. Baleshwar Singh Vs District Magistrate and
Collector, 1958 SCC OnLine All 349 : AIR 1959
All 71

26. K. C. Sareen Vs CBI, (2001) 6 SCC 584,
(Para 11)

27. Ram Singh Vs Union of India, 2008 SCC
OnLine All 133

28. Lok Prahari Vs Election Commission of India,
(2018) 18 SCC 114

29. Committee of Management, Shiksha Prasar
Samiti Vs St. of U. P. and 2 others, 2023 (5) ADJ
546

30. Ran Vijay Chandra Vs St. of U.P., 2003 (2)
AWC 1385

(Delivered by Hon'ble Subhash Vidyarthi,
J.)

1. Heard Sri Jaideep Narain Mathur
Senior Advocate assisted by Sri Amit
Jaiswal, Sri Nadeem Murtaza and Sri Mohit
Singh Advocates, the learned Counsel for
the applicant, Dr. V. K. Singh, the learned
Government Advocate for the State, Sri
Vijay Dixit and Sri Devam Shukla
Advocates, the learned Counsel appearing
on behalf of the intervenors.

2. Briefly stated, facts of the case are
that a First Information Report was lodged
by a Sales Tax Officer against the applicant
and 10-12 unnamed persons on 06.10.1991
alleging that when the informant was
performing his duties in his office, the
applicant and the other accused persons
entered his office and beaten him up and
that some other businessmen had abused
and threatened him as to why the informant
used to intercept the vehicles loaded with
goods. The informant stated that other
Sales Tax Officers present in the Sales Tax
Office came to the spot due to which the
accused persons ran away while threatening
that in case any other vehicle is intercepted,
the informant will be killed. The informant
further alleged that earlier also, the accused
persons had abused another Sales Tax
Officer Sri D. C. Chaturvedi, had broken
some chairs kept in the office and had
threatened the officers.

3. In furtherance of the aforesaid
F.I.R., a charge-sheet was submitted against
the applicant only and he alone was tried
for commission of offences under Sections
332, 504 and 506 IPC and he has been
convicted for commission of offences
under Sections 332 and 506 IPC by means
of the judgment and order dated 23.02.2023
passed
by Additional
Chief
Judicial
Magistrate, Court No. 11 Lucknow. The
applicant has been sentenced to undergo
simple imprisonment for a period of 2 years
for each of the offences and to pay a fine of
Rs.2,000/- for the offence under Section
332 IPC and Rs.3,000/- for the offence
under Section 506 IPC.

4. The applicant has filed a Criminal
Appeal No. 46 of 2023 in the Court of
Sessions Judge, Lucknow, challenging the
aforesaid
judgment
and
order
dated
23.02.2023. He filed an application praying
for staying the conviction and sentence
during pendency of the appeal, as also an
application for his release on bail during
the pendency of the appeal.

5. The appeal has been admitted by
means of the order dated 01.03.2023 and
the execution of the sentence has been
suspended during pendency of the appeal
11 All. Banwari Lal Kanchhal Vs. State of U.P.
411
subject to the condition that the appellant
deposits entire amount of penalty within a
period of 15 days and the applicant has
been enlarged on bail.

6. The applicant filed an application
for correction/modification of the order
dated 01.03.2023 passed by the appellate
Court stating that the order mentions stay
of sentence only and stay of conviction was
omitted from being transcribed and it
should also be stayed.

7. On 28.08.2023, the Sessions Judge,
Lucknow passed an order rejecting the
application for stay of conviction and the
application for correction also.

8. After rejection of the aforesaid
application filed under Section 389(1)
Cr.P.C., the applicant has approached this
Court by filing instant application under
Section 389(2) Cr.P.C. with the following
prayers:-

"It is therefore most respectfully
prayed that this Hon'ble Court may
graciously be pleased to set aside the
impugned order dated 28.08.2023 passed
by the learned Sessions Judge, Lucknow in
Criminal Appeal No.46 of 2023 (Banwari
Lal Kanchhal vs. State of U.P.) arising out
of Criminal Case No.2824/2022 (CNR
No.UPLK04-006240-2022)
(State
vs.
Banwari Lal Kanchhal) arising out of Case
Crime No.1039/1991, under Sections 332,
506 I.P.C., Police Station Hazratganj,
District -Lucknow and stay the order of
conviction dated 23.02.2023 passed by the
Additional Chief Judicial Magistrate-III,
Court No. 27. Lucknow in Criminal Case
No.2824/2022 (CNR No.UPLK04- 0062402022) (State vs. Banwari Lal Kanchhal)
arising out of Case Crime No. 1039/1991,
under Sections 332, 506 I.P.C., Police
Station - Hazratganj, District -Lucknow
during the pendency of Criminal Appeal
No.46 of 2023 (Banwari Lal Kanchhal vs.
State of U.P.) before Sessions Judge,
Lucknow.

It is further prayed that this Hon'ble
Court may graciously be pleased to stay the
order of conviction dated 23.02.2023
passed
by
Additional
Chief
Judicial
Magistrate-III, Court No. 27, Lucknow in
Criminal
Case
No.2824/2022
(CNR
No.UPLK04-006240-2022)
(State
vs.
Banwari Lal Kanchhal) arising out of Case
Crime No.1039/1991, under Sections 332,
506 I.P.C., Police Station Hazratganj,
District - Lucknow during the pendency of
the present application and/or pass such
other and further order which this Hon'ble
Court may deem fit and proper in the facts
and circumstances of the case, to meet the
ends of justice."

9. It has been stated in the affidavit
filed in support of the application that the
applicant is a 78 years old person, he is
former Member of Parliament (Rajya
Sabha) and also a former Member of
Legislative Council of U.P. The applicant is
a life member of a Society namely, Sri
Ramswaroop
Memorial
Institute
of
Management and Computer Application.
The regulations of association of the
aforesaid
society
provide
for
disqualification
of
a
Member
upon
conviction for an offence involving moral
turpitude. Although the offences under
Sections 332 and 506 IPC are neither
serious nor involve moral turpitude yet the
applicant is facing a serious threat of
disqualification of life membership of the
society. The General Body of the Society
has passed a resolution dated 20.05.2023
terminating the life membership of the
applicant. The Deputy Registrar, Firm
Society and Chits had issued a notice dated
412 INDIAN LAW REPORTS ALLAHABAD SERIES
12.06.2023 asking the applicant to submit
his objections against the resolution dated
20.05.2023. The applicant has sent a letter
dated 18.09.2023 to the Deputy Registrar,
Firm Society and Chits demanding copies
of the certain documents to enable him to
submit his objections against the resolution.

10. It has further been stated in the
affidavit that the applicant is a life member
of the Society, which runs various
educational courses in institutions run by it;
that as a life member of the society, the
applicant performs important functions of
the society, which will come to a halt
consequent to his disqualification as a life
member which, in turn, would impact
thousands of students and livelihood of
hundreds of employees of the institution.
Consequence of disqualification of the
applicant would be irreparable and will
lead to injustice, as the applicant would not
be able to continue as a life member of the
society, unless his conviction is stayed.

11. Applicant's involvement in the
following five cases has been disclosed in
para 43 of the affidavit filed in support of
the application, in all of which he has been
granted bail:-

S.
No
.
Case
No.
Crim
e
No.
Police
Statio
n/Dist
rict
Sections
1
9313/
07
736/
98
Hazrat
ganj/L
uckno
w
332/402/472
IPC
2
9329/
07
736
A/98
Hazrat
ganj/L
uckno
147/148/332
IPC
w
3
3618/
09
19/0
9
Kaisar
bagh/
Luckn
ow
147/435/341
IPC
4
9316/
17
736
C/98
Hazrat
ganj/L
uckno
w
147/149/307/3
32/336/353/50
4/436/427/452
/34 IPC
5
278B/
92

Saroji
niNag
ar/Luc
know
147/353/504
IPC

12. The State has filed a counter
affidavit in which the criminal history
disclosed by the applicant in para 43 of the
affidavit has not been disputed, but it has
been stated that as per the report submitted
by District Crime Record Bureau, the
applicant is not involved in any case, other
than Crime No.1039 of 1991, from which
the present application arises.

13.

The
State
has
filed
a
supplementary counter affidavit stating that
the aforesaid statement erroneously crept in
the counter affidavit because of an
incomplete DCRB report whereas the
applicant is involved in a total of 6 cases,
which have already been disclosed by the
applicant.

14. Dr. Swati Agarwal, Dr.
Bhartendu
Agarwal
and
Laxmi
Narayan Awarwal
have
filed
an
application for intervention, stating
that they are also Members of the
Society. Intervention application was
allowed by means of the order dated
01.11.2023 and the learned counsel
for the interveners has also been
heard.
11 All. Banwari Lal Kanchhal Vs. State of U.P.
413

15. Sri. Vijay Dixit, the learned
Counsel for the interveners has submitted
as
a
preliminary
objection
against
maintainability of the application that in the
order dated 27.04.2016 passed by this
Court at Allahabad in Application under
Section 482 Cr.P.C. No. 8270 of 2016 titled
B. K. Tiwari versus State of U.P., it was
held that the power with regard to granting
or rejecting the bail exercisable by the
lower appellate court can very well be
exercised by the High Court also, by virtue
of sub-section (2) of Section 389 of Cr.P.C.
If an appeal by a convicted person is filed
in a court subordinate to High Court then
the powers which the subordinate court of
appeal would exercise are concurrent with
the powers of the High Court in this regard
by virtue of 389(2) of Cr.P.C. In fact just as
has been provided by Section 439 of
Cr.P.C. that a High court or a court of
Session both may direct the release of an
under trial accused on bail, similarly in
case of an appeal filed by a convicted
accused also the power of the subordinate
appellate court with regard to bail can also
be exercised by the High Court to whom
the lower appellate court is subordinate to.
There does not appear to be any ambiguity
with regard to the aforesaid provisions.

16. Thereafter the applicant of
Application under Section 482 Cr.P.C. No.
8270 of 2016 had filed a Criminal Misc.
Application under Section 389 (2) Cr.P.C.
No. 1 of 2016. On 20.01.2017, another
coordinate bench of this Court passed an
order expressing its opinion that the filing
of the bail application under section 389 (2)
Cr.P.C. before this Court would bestow
special concern in the matter of pending
appeal in the court below and would
amount to curtail or abrogate the power of
sub-ordinate court rather creating a new
field of vision to sit as a court of appeal to
entertain the bail application under section
389 (2) Cr.P.C. when the bail application
has already been rejected by the court
below and no appeal is pending before this
Court and the coordinate Bench has
referred this point for consideration of a
larger Bench. The matter is still pending
consideration of a larger bench.

17. Sri. Vijay Dixit, the learned
Counsel for the interveners has submitted
that as the question of maintainability of an
application under Section 389 (2) Cr.P.C.
before this Court during pendency of an
appeal before the Session Court is pending
consideration of a larger bench, this Court
should refrain from hearing the application
under Section 389 (2) Cr.P.C.

18. The second preliminary objection
raised by Sri. Dixit is that the applicant has
sought stay of conviction in order to protect
the life membership of an educational
society, which membership has already
been terminated by means of a resolution
dated 20.05.2023 passed by the General
Body of the Society. The membership
already having been terminated, now there
are no apprehended consequences of the
conviction which may be prevented by the
suspension
of
conviction
and
the
application has become infructuous.

19. The third preliminary objection of
the learned Counsel for the interveners is
that the membership of a society is not
even a statutory right and deprivation
thereof would not amount to any legal
injury. In absence of any apprehended legal
injury, the prayer of stay of conviction
cannot be entertained.

20. Replying to the first preliminary
objection, Sri. Jaideep Narain Mathur
Senior Advocate submitted on behalf of the
414 INDIAN LAW REPORTS ALLAHABAD SERIES
applicant that in Rajnish Kumar Rai
Versus Union of India and Others, 2023
SCC
OnLine
SC
1222,
a
similar
submission was made before the Hon'ble
Supreme Court. Rejecting the submission,
the Hon'ble Supreme Court held that till a
judgment comes from the larger bench on
the point, the ratio of the earlier judgment
cannot be ignored.

21. In Union Territory of Ladakh
and Others Versus Jammu and Kashmir
National Conference and Another, 2023
SCC OnLine SC 1140, the Hon'ble
Supreme Court has observed that: -

"35.We are seeing before us judgments
and orders by High Courts not deciding
cases on the ground that the leading
judgment of this Court on this subject is
either referred to a larger Bench or a
review petition relating thereto is pending.
We have also come across examples of
High
Courts
refusing
deference
to
judgments of this Court on the score that a
later Coordinate Bench has doubted its
correctness. In this regard, we lay down the
position in law. We make it absolutely clear
that the High Courts will proceed to decide
matters on the basis of the law as it stands.
It is not open, unless specifically directed
by this Court, to await an outcome of a
reference or a review petition, as the case
may be. It is also not open to a High Court
to refuse to follow a judgment by stating
that it has been doubted by a later
Coordinate Bench. In any case, when
faced with conflicting judgments by
Benches of equal strength of this Court, it
is the earlier one which is to be followed
by the High Courts..."

(Emphasis supplied)

22. Therefore, I am of the considered
view that the mere reference of a question
to a larger bench would not dilute the law
laid down in the aforesaid judgment dated
27.04.2016 passed by this Court at
Allahabad in Application under Section 482
Cr.P.C. No. 8270 of 2016 and I turn down
the first preliminary objection raised by the
learned Counsel for the interveners that this
Court should not hear the application till
pronouncement of judgment by the larger
bench.

23. In reply to the second preliminary
objection
that
the
applicant's
life
membership of the society has already been
terminated by means of a resolution dated
20.05.2023 passed by the General Body of
the Society and the application has become
infructuous, Sri. Jaideep Narain Mathur
Senior Advocate has submitted that the
Deputy Registrar, Firm Society and Chits
had issued a notice dated 12.06.2023
asking
the
applicant
to
submit
his
objections against the resolution dated
20.05.2023. The applicant has sent a letter
dated 18.09.2023 to the Deputy Registrar,
Firm Society and Chits demanding copies
of the certain documents to enable him to
submit his objections against the resolution.

24. Section 4-B of the Societies
Registration Act, 1860, as it applies to the
State of Uttar Pradesh, provides that: -

"4-B(1)
At
the
time
of
registration/renewal of a society, list of
members of General Body of that society
shall be filed with the Registrar mentioning
the name, father's name, address and
occupation of the members. The Registrar
shall examine the correctness of the list of
members of the General Body of such
society on the basis of the register of
members of the General Body and minutes
book thereof, cash book, receipt book of
11 All. Banwari Lal Kanchhal Vs. State of U.P.
415
membership fee and bank pass book of the
society.

(2) If there is any change in the list of
members of the General Body of the society
referred to in sub-section (1), on account of
induction, removal, registration or death of
any member, a modified list of members of
General Body, shall be filed with the
Registrar, within one month from the date
of change.

(3) The list of members of the General
Body to be filed with the Registrar under
this section shall be signed by two office
bearers and two executive members of the
society."

25.

In
The
Committee
of
Management,
Dadar
Ashram
Trust
Society and Ors. vs. Mahatma Gandhi
Kashi Vidyapeeth and Ors. AIR 2017 All
60, a Division Bench of this Court held that
"By virtue of amendment introduced in the
Act of 1860, the list of members of society
is also required to be filed under Section 4B with the Registrar at the time of
registration or renewal of society. Section
15 of the Act defines 'member' of a society.
Section 22 provides power to the Registrar
to call for information. Jurisdiction is also
vested in the Registrar by virtue of
section 24 to conduct investigation in
the affairs of the society. From the
scheme of Act, it is apparent that the
Act of 1860 is a self-contained Code,
which provides for registration of
literary,
scientific
and
charitable
societies. All aspects of the society
from the stage of its constitution,
registration,
membership,
election,
possessing of property, resolution of
dispute
of
office-bearers
and
members, are all covered by the Act,
and to that extent it is a special law
dealing with the societies registered
under the Act."

26. As the question of membership of
the applicant is still pending before the
Sub-registrar in proceedings under Section
4-B of the Societies Registration Act, 1860,
without going into further details of the
merits of the rival claims regarding validity
of the resolution dated 20.05.2023 passed
by the General Body of the society
terminating the applicant's membership, I
hold that the aforesaid resolution would not
create a bar against maintainability of the
application under Section 389 (2) Cr.P.C.

27. The third preliminary objection of
the learned Counsel for the interveners is
that the membership of a society is not
even a statutory right and deprivation
thereof would not amount to any legal
injury. In absence of any apprehended legal
injury, the prayer of stay of conviction
cannot be entertained. In support of this
contention, Sri. Vijay Dixit has relied upon
a judgment of the Hon'ble Supreme Court
in K. Prabhakaran versus P. Jayarajan,
(2005) 1 SCC 754.

28. In K. Prabhakaran (Supra), the
Hon'ble Supreme Court was inter alia
deciding the question whether an appellate
judgment of a date subsequent to the date
of election and having a bearing on
conviction of a candidate and sentence of
imprisonment passed on him would have
the effect of wiping out disqualification
under Section 8 (3) of the Representation of
the People Act, 1951 from a back date if a
person
was
disqualified
from
filing
nomination and contesting the election on
the dates of nomination and election?
Answering the aforesaid question, the
Hon'ble Supreme Court held that the
qualification of a person to submit his
nomination is to be judged as on the date of
submission of the nomination and if his
conviction is set aside subsequently, it will
416 INDIAN LAW REPORTS ALLAHABAD SERIES
have no effect on the validity of the order
rejecting his nomination. The aforesaid
judgment deals specifically with Section 8
(3) of the representation of the People Act,
1951, which has no application in the
present case.

29. Sri. Dixit next relied upon a
judgment of the Division Bench of this
Court in Singhasan Singh v. State of U.P.,
2007 SCC OnLine All 1680 : 2008 (60)
ACC 128. The appellant in that case had
been convicted under section 302/149 and
sentenced to imprisonment for life and a
fine of Rs. 5,000/- IPC, he had been
convicted for the offence under section
326/149 IPC and sentenced to 10 years'
rigorous imprisonment and a fine of Rs.
2,000/- and he had also been sentenced
under section 147 IPC, for which he was
sentenced
to
one
year's
rigorous
imprisonment.
The
appeal
had
been
admitted and the applicant had been
granted bail. Rejecting the plea for stay of
conviction in view of the judgment
inNavjot Singh Sidhu v. State of Punjab,
(2007) 2 SCC 574, this Court held that the
facts of Navjot Singh Sidhu(supra) are
clearly
distinguishable.Navjot
Singh
Sidhuhad been acquitted of the charges
under Section 302 IPC and had only been
convicted and awarded a sentence of 3
years' rigorous imprisonment and a fine of
Rs. 1,000/- under section 304. The special
circumstances of that case were that after
pronouncement of the judgment by the
High Court, which had reversed the
acquittal by the Trial Court and recorded
the conviction of the appellant had resigned
from the membership of the Lok Sabha for
maintaining probity and moral values in
public life. The Counsel for Singhasan
Singh had neither pointed out how the
offence for which he was convicted was not
of a grave nature and how he would suffer
from the disabilities if after 4-1⁄2 years the
order of conviction was not stayed except
making
general
averments
that
his
eligibility to contest for the electoral office
would be adversely affected. Singhasan
Singh (Supra) was based on the peculiar
facts of the case, particularly the appellant's
conviction for committing the offence of
murder and his being sentenced to undergo
imprisonment for life and no general rule of
universal application was laid down in that
case which would affect the maintainability
of the present application.

30. The learned Counsel for the
interveners next placed a judgment passed
by a Division Bench of this Court in an
Intra-Court appeal titled Radhey Shyam v.
State of U.P., 2008 SCC OnLine All 175.
The appellantin that case had been removed
from the post of Pradhan in exercise of the
power under section 95(1)(g) of the U.P.
Panchayat Raj Act, 1947. He challenged
the
removal
order
passed
by
the
Collector/District Magistrate by filing a
writ petition. The Hon'ble Single Judge
found that the appellant having been
convicted for the offence of dacoity and
attempt to murder, was not entitled to hold
public office of Pradhan of the village. In
Appeal, the Division Bench held that there
was no order of stay of conviction and,
therefore, there was no illegality in
dismissal of the Writ Petition.

31. In the cases of Singhasan Singh
(Supra) the petitioner had been convicted
of offences for murder, which is punishable
with death and in the other case of and
Radhey Shyam (Supra) the petitioner had
been convicted for the offence of dacoity
with attempt to murder which is punishable
with imprisonment upto life, whereas in the
present case, the applicant has been
convicted for offence under Sections 332
11 All. Banwari Lal Kanchhal Vs. State of U.P.
417
IPC carrying the maximum punishment for
imprisonment upto 3 years and the
applicant has been awarded the sentence of
imprisonment for 2 years. He has also been
convicted of the offence under Section 506
IPC,
which
carries
the
maximum
punishment for imprisonment upto 2 years
and he has been awarded the maximum
sentence. The cases of Singhasan Singh and
Radhey Shyam (Supra) were decided
keeping in view the peculiar facts of those
cases which are materially different from
the facts of the present case. Therefore, the
observations made in Singhasan Singh and
Radhey Shyam (Supra) would not apply to
the facts of the present case.

32. Accordingly, I reject all the
preliminary objections raised by the learned
Counsel for the interveners.

33. Dr. V. K. Singh, the learned
Government Advocate has also raised a
preliminary objection that the first relief
claimed in the application is for setting
aside the order passed by the Appellate
Court rejecting the application under
Section 389 (1) Cr.P.C. and this relief
cannot be granted under Section 389 (2)
Cr.P.C. The learned Government Advocate
is right in his submission, but the applicant
has also prayed for stay of his conviction
and if one of the several reliefs prayed by
an applicant deserves consideration on
merits, the mere fact that one of the reliefs
claimed cannot be granted by the Court,
cannot be a ground for rejection of the
application in limine.

34.

The
learned
Government
Advocate next submitted that in the
application under Section 389 (1) Cr.P.C.,
the applicant had not made a mention of the
name of the society and his pleadings were
vague. The applicant has improved his case
while drafting the application under Section
389 (2) Cr.P.C. In this regard, suffice it to
say that as has been submitted by the
learned Government Advocate himself, this
Court is not hearing an appeal against the
order passed by the Appellate Court
rejecting the application under Section 389
(1) Cr.P.C. and, therefore, this Court need
not go into the facts pleaded in the
application under Section 389 (1) Cr.P.C.
filed before the Appellate Court and this
Court has to decide the application under
Section 389 (2) Cr.P.C. on the basis of
averments made therein.

35. The learned Counsel for the
applicant has relied upon the judgment of
the Hon'ble Supreme Court in the case of
Rama Narang v. Ramesh Narang, (1995)
2 SCC 513 and a judgment of this Court in
the case of Annu Tandon versus State,
(2022) ILR 1 All 931.

36.

The
Learned
Government
Advocate has relied upon the judgments in
the State of Maharashtra versus Gajanan
and another, (2003) 12 SCC 432,
Ravikant S. Patil v. Sarvabhouma S.
Bagali, (2007) 1 SCC 673, Navjot Singh
Sidhu v. State of Punjab, (2007) 2 SCC
574, Ram Singh v. Union of India, 2008
SCC OnLine All 133 : (2008) 3 ADJ 723,
Shyam Narain Pandey v. State of U.P.,
(2014) 8 SCC 909, Vikram Singh Saini
versus State of U.P., 2022 SCC OnLine
All 773, Rahul Gandhi Versus Purnesh
Ishwarbhai Modi and Another, 2023
SCC OnLine SC 929, and Annu Tandon
versus State, (2022) ILR 1 All 931

37. Sri. Vijay Dixit, the learned
Counsel for the interveners has relied upon
the judgments in the cases of Rama
Narang v. Ramesh Narang, (1995) 2 SCC
513, State of T.N. v. A. Jaganathan,
418 INDIAN LAW REPORTS ALLAHABAD SERIES
(1996) 5 SCC 329, Irfan and Ors. vs.
State of U.P., 2009 (6) ADJ 177, K.C.
Sareen v. CBI, (2001) 6 SCC 584,
Ravikant S. Patil v. Sarvabhouma S.
Bagali, (2007) 1 SCC 673, Shyam Narain
Pandey v. State of U.P., (2014) 8 SCC
909, Indra Pratap Tiwari vs. State of
U.P., (2021) ILR 12 All 50, Vikram Singh
Saini versus State of U.P., 2022 SCC
OnLine All 773, Omprakash Sahni v. Jai
Shankar Chaudhary, (2023) 6 SCC 123, a
judgment dated 27.04.2023 passed by a
coordinate bench of this Court at Allahabad
in Writ C No. 9866 of 2023, C/M Shiksha
Prasar Samiti and another versus State
of U.P. and 2 others, State Bank of India
versus P. Soupramaniane, (2019) 18 SCC
135, Sushil Kumar Singhal versus
Regional Manager, Punjab National
Bank, (2010) 8 SCC 573, Annu Tandon
versus State, (2022) ILR 1 All 931,
Coopertative Central Bank Ltd. and
others
versus
Additional
Industrial
Tribunal and other, (1969) 2 SCC 43 and
Baleshwar Singh v. District Magistrate
and Collector, 1958 SCC OnLine All 349 :
AIR 1959 All 71

38. In Rama Narang v. Ramesh Narang,
(1995) 2 SCC 513, the Hon'ble Supreme
Court has explained the circumstances
under which an order of conviction can be
stayed under Section 389 Cr.P.C. The
relevant portion of the aforesaid judgment
is as follows: -

"16. In certain situations the order of
conviction can be executable, in the sense,
it may incur a disqualification as in the
instant case. In such a case the power
under Section 389 (1) of the Code could be
invoked. In such situations the attention of
the Appellate Court must be specifically
invited to the consequence that is likely to
fall to enable it to apply its mind to the
issue since under Section 389(1) it is under
an obligation to support its order "for
reasons to be recorded by it in writing".

* * *
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
11 All. Banwari Lal Kanchhal Vs. State of U.P.
419
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 of (sic 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."

39. In State of T.N. v. A.
Jaganathan, (1996) 5 SCC 329 the
respondents were government employees
and they had been convicted and sentenced
for various offences and the Appellate
Court had confirmed the orders. The
respondents filed a revision before the High
Court and the High Court allowed their
application under Section 389(1) Cr.P.C.
for suspension of convictions as well as the
sentences on consideration of the fact that
the respondents will lose the meager
stipend, if the prayer for suspending the
conviction during the pendency of the
revisions is not granted. In appeal, the
Hon'ble Supreme Court held that Rama
Narang case had no application to the facts
of the cases. In Rama Narang the
conviction
and
sentences
both
were
suspended on the reasoning that if the
conviction and sentences are not suspended
the damage would be caused which could
not be undone if ultimately the revision of
the appellants of that case was allowed. But
in the case of Jaganathan, in the event the
revisions against their conviction and
sentences are allowed by the High Court
the damage, if any, caused to the
respondents with regard to payment of
stipend etc. can well be revived and made
good to the respondents. The Hon'ble
Supreme Court also held that the High
Court did not consider at all the moral
conduct of the respondents inasmuch as
respondent Jaganathan who was the Police
Inspector attached to Erode Police Station
had been convicted under Sections 392
I.P.C. - i.e., robbery, which in punishable
with imprisonment which may extend to 14
years, and 466 IPC - forgery of Court
record,
which
is
punishable
with
imprisonment which may extend to 7 years,
while the other respondents who are also
public servants had been convicted under
the provision of Prevention of Corruption
Act which carry the maximum punishment
of imprisonment for 7 years. In such a case
the discretionary power to suspend the
conviction either under Sections 389(1) or
under Section 482 Cr.P.C. should not have
been exercised.

40. In K. C. Sareen v. CBI, (2001) 6
SCC 584, a bank officer had defrauded the
Bank to the tune of about Rs 2 lakhs and he
was
sentenced
to
rigorous
imprisonment for one year and to pay
a fine of Rs 500 for the offence under
Section 13(2) of the PC Act. The High
Court had admitted his appeal and
suspended the sentence. The appellant
was dismissed from service because of
his conviction. His application for
suspension of the conviction was
dismissed
by
the
High
Court
observing that he was already out of
service and in case he was ultimately
acquitted, the damage, if any, caused
with regard to his service can well be
revived and made good to them. In the
aforesaid
factual
background,
the
Hon'ble Supreme Court held that: -
420 INDIAN LAW REPORTS ALLAHABAD SERIES

"11. The legal position, therefore, is
this: though the power to suspend an order
of conviction, apart from the order of
sentence, is not alien to Section 389(1) of
the Code, its exercise should be limited to
very exceptional cases. Merely because the
convicted person files an appeal in
challenge of the conviction the court should
not suspend the operation of the order of
conviction. The court has a duty to look at
all aspects including the ramifications of
keeping such conviction in abeyance.