# CASE DETAILS AFJAL ANSARI v. STATE OF UP

- **Citation:** 2023 INSC 1071
- **Court:** Supreme Court of India
- **Decided:** 2023-12-14
- **Case number:** Criminal Appeal No. 3838 of 2023
- **Bench:** Surya Kant, Dipankar Datta, Ujjal Bhuyan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-afjal-ansari-v-state-of-up-36966
- **Pages:** 57

## Headnote

Issue for consideration: What are the parameters to be considered
for the suspension of conviction u/s. 389(1) CrPC; whether the appellant
has made out a prima facie case for the suspension of conviction u/s. 389(1)
CrPC; and whether conviction of an off ence involving 'moral turpitude'
can be a valid ground to deny suspension of conviction u/s. 389(1) CrPC.
Code of Criminal Procedure, 1973 - s. 389 (1) - Suspension of
conviction -Appellant-member of Parliament, convicted u/s. 3(1) of the
Gangsters Act and sentenced to four years imprisonment with a fi ne
of Rupees One lakh by the trial court, and consequent thereto he was
disqualifi ed from membership in the Lok Sabha - Thereagainst, the
appellant fi led an appeal as also an application u/s. 389(1) for suspension
of execution of the sentence awarded and his release on bail, during
pendency of the appeal, stay of the eff ect and operation of the judgement
passed by the trial court - High Court suspended the sentence and
granted bail but rejected the stay on conviction - Correctness:
Held: Per Surya Kant, J (For himself and Ujjal Bhuyan, J) High
Court held that there was no cogent evidence to establish that the appellant
was indulging in anti-social activities and crimes such as murder or ransom;
and that the appellant's role in the old FIR, which stood reference point
in the gang chart in the new FIR, had already resulted in his acquittal -
Having applied the criteria that conviction, if allowed to operate would
lead to irreparable damage and where the convict cannot be compensated
in any monetary terms or otherwise, if he is acquitted later on, carves
Ed. Note: Hon'ble Mr. Justice Surya Kant pronounced judgment on behalf of himself
and Hon'ble Mr. Justice Ujjal Bhuyan. Hon'ble Mr. Justice Dipankar Datta pronounced a
separate judgment.
970
SUPREME COURT REPORTS
[2023] 16 S.C.R.
out an exceptional situation, warranting an order of stay on his award
of conviction, though partially - Potential ramifi cations of declining to
suspend such a conviction are multifaceted - It would deprive the appellant's
constituency of its legitimate representation in the Legislature; and the
appellant would be disqualifi ed from contesting elections for a period of ten
years - Thus, the need to balance the interests of protecting the integrity of
the electoral process on one hand, while also ensuring that constituents are
not bereft of their right to be represented, merely consequent to a threshold
opinion - Conviction awarded to the appellant suspended subject to the
given conditions, clarifi cations and directions - Ghazipur parliamentary
constituency not to be notifi ed for bye-election, till the decision of the
appellant's appeal by the High Court - Appellant not entitled to participate
in the proceedings of the house, would not have the right to cast his vote in
the house or to draw any perks or monetary benefi ts. [Paras 13, 15, 17, 21,
23, 24] - Held: Per Dipankar Datta, J.(Dissenting) Allowing a convicted
parliamentarian to attend parliamentary proceedings could not only be
derogatory to the dignity of the Parliament but also derogatory to the good
sense and wisdom of the people who elected such parliamentarian - While
recognizing the importance of the electorate's representation, it is necessary
to maintain a balance between this right and the enforcement of legal
accountability within the democratic framework - The fact that the court is
approached by a parliamentarian/legislator, by itself, should not be viewed
with such importance and indispensability - Thus, the judgment passed by
the High Court does not call for interference - Uttar Pradesh Gangsters and
Anti Social Activities (Prevention) Act, 1986. [Paras 52, 80, 48]
Code of Criminal Procedure, 1973 - s. 389(1) - Suspension of
conviction - Essential parameters:
Held: It is evident from the plain language of s. 389(1) that the
appellate court is unambiguously vested with the power to issue an order for
the suspension of a sentence o

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[2023] 16 S.C.R. 969 : 2023 INSC 1071
969
CASE DETAILS
AFJAL ANSARI
v.
STATE OF UP
(Criminal Appeal No. 3838 of 2023)
DECEMBER 14, 2023
[SURYA KANT, DIPANKAR DATTA AND UJJAL BHUYAN, JJ.]
HEADNOTES
Issue for consideration: What are the parameters to be considered
for the suspension of conviction u/s. 389(1) CrPC; whether the appellant
has made out a prima facie case for the suspension of conviction u/s. 389(1)
CrPC; and whether conviction of an off ence involving 'moral turpitude'
can be a valid ground to deny suspension of conviction u/s. 389(1) CrPC.
Code of Criminal Procedure, 1973 - s. 389 (1) - Suspension of
conviction -Appellant-member of Parliament, convicted u/s. 3(1) of the
Gangsters Act and sentenced to four years imprisonment with a fi ne
of Rupees One lakh by the trial court, and consequent thereto he was
disqualifi ed from membership in the Lok Sabha - Thereagainst, the
appellant fi led an appeal as also an application u/s. 389(1) for suspension
of execution of the sentence awarded and his release on bail, during
pendency of the appeal, stay of the eff ect and operation of the judgement
passed by the trial court - High Court suspended the sentence and
granted bail but rejected the stay on conviction - Correctness:
Held: Per Surya Kant, J (For himself and Ujjal Bhuyan, J) High
Court held that there was no cogent evidence to establish that the appellant
was indulging in anti-social activities and crimes such as murder or ransom;
and that the appellant's role in the old FIR, which stood reference point
in the gang chart in the new FIR, had already resulted in his acquittal -
Having applied the criteria that conviction, if allowed to operate would
lead to irreparable damage and where the convict cannot be compensated
in any monetary terms or otherwise, if he is acquitted later on, carves
Ed. Note: Hon'ble Mr. Justice Surya Kant pronounced judgment on behalf of himself
and Hon'ble Mr. Justice Ujjal Bhuyan. Hon'ble Mr. Justice Dipankar Datta pronounced a
separate judgment.
970
SUPREME COURT REPORTS
[2023] 16 S.C.R.
out an exceptional situation, warranting an order of stay on his award
of conviction, though partially - Potential ramifi cations of declining to
suspend such a conviction are multifaceted - It would deprive the appellant's
constituency of its legitimate representation in the Legislature; and the
appellant would be disqualifi ed from contesting elections for a period of ten
years - Thus, the need to balance the interests of protecting the integrity of
the electoral process on one hand, while also ensuring that constituents are
not bereft of their right to be represented, merely consequent to a threshold
opinion - Conviction awarded to the appellant suspended subject to the
given conditions, clarifi cations and directions - Ghazipur parliamentary
constituency not to be notifi ed for bye-election, till the decision of the
appellant's appeal by the High Court - Appellant not entitled to participate
in the proceedings of the house, would not have the right to cast his vote in
the house or to draw any perks or monetary benefi ts. [Paras 13, 15, 17, 21,
23, 24] - Held: Per Dipankar Datta, J.(Dissenting) Allowing a convicted
parliamentarian to attend parliamentary proceedings could not only be
derogatory to the dignity of the Parliament but also derogatory to the good
sense and wisdom of the people who elected such parliamentarian - While
recognizing the importance of the electorate's representation, it is necessary
to maintain a balance between this right and the enforcement of legal
accountability within the democratic framework - The fact that the court is
approached by a parliamentarian/legislator, by itself, should not be viewed
with such importance and indispensability - Thus, the judgment passed by
the High Court does not call for interference - Uttar Pradesh Gangsters and
Anti Social Activities (Prevention) Act, 1986. [Paras 52, 80, 48]
Code of Criminal Procedure, 1973 - s. 389(1) - Suspension of
conviction - Essential parameters:
Held: It is evident from the plain language of s. 389(1) that the
appellate court is unambiguously vested with the power to issue an order for
the suspension of a sentence or an order of conviction during the pendency
of an appeal and grant bail to the incarcerated convict, for which it is
imperative to assign the reasons in writing - The very notion of irreversible
consequences is centered on factors, including the individual's criminal
antecedents, the gravity of the off ence, and its wider social impact, while
simultaneously considering the facts and circumstances of the case - s.
389(1) should not be interpreted in a narrow manner, in the context of a stay
on an order of conviction, when there are irreversible consequences - An
971
order granting a stay of conviction should not be the rule but an exception
and should be resorted to in rare cases depending upon the facts of a case -
However, where conviction, if allowed to operate would lead to irreparable
damage and where the convict cannot be compensated in any monetary
terms or otherwise, if he is acquitted later on, that by itself carves out an
exceptional situation. [Paras 10, 11, 15]
Code of Criminal Procedure, 1973 - s. 389 (1) - Suspension of
conviction - Conviction of an off ence involving 'moral turpitude', if a
ground to deny suspension of conviction u/s. 389(1):
Held: While invoking the concept of 'moral turpitude' as a
decisive factor in granting or withholding the suspension of conviction
for an individual, there is a resounding imperative to address the issue
of depoliticising criminality - There has been increasing clamour to
decriminalise polity and hold elected representatives accountable for
their criminal antecedents - It is a hard truth that persons with a criminal
background are potential threats to the very idea of democracy, since they
often resort to criminal means to succeed in elections and other ventures -
On facts, substantial doubt cast upon the appellant's criminal antecedents
along with the veracity and threat posed by these claims, in light of the many
FIRs produced in the proceedings - Although 'moral turpitude' may carry
relevance within the context of elected representatives, the courts are bound
to construe the law in its extant state and confi ne their deliberations to those
facets explicitly outlined, rather than delving into considerations pertaining
to the moral rectitude or ethical character of actions - This is especially true
when it is solely motivated by the convicted individual's status as a political
representative, with the aim of disqualifi cation. [Paras 19, 20]
Judicial Notice - Appellant seeking suspension of conviction u/s.
389(1) CrPC - Appellant not enumerate any material facts regarding
irreversible consequences in his application fi led before the High Court,
seeking the suspension of conviction:
Held: This principle can be traced to the statutory provisions outlined
in s. 8 of the Representation of the People Act - High Court or this Court
however, while exercising their appellate jurisdictions, well empowered to
take judicial notice of these consequences - Code of Criminal Procedure,
1973. [Para 18]
AFJAL ANSARI v. STATE OF UP
972
SUPREME COURT REPORTS
[2023] 16 S.C.R.
LIST OF CITATIONS AND OTHER REFERENCES
In The Judgment of Surya Kant, J.
Naranbhai Khikhabhai Kachchadia v. State of Gujarat Crl. Appeal
No. 418/2016; Lok Prahari through General Secretary v. Election
Commission of India and others [2018] 12 SCR 169 : (2018) 18 SCC
114; Lily Thomas v. Union of India [2013] 10 SCR 1130 : (2013) 7 SCC
653; Sanjay Dutt v. State of Maharashtra (2009) 5 SCC 787; Ravikant
S. Patil v. Sarvabhouma S. Bagali [2006] 8 Suppl. SCR 1156 : (2007) 1
SCC 673 - referred to.
In The Judgment of Dipankar Datta, J.
Rahul Gandhi v. Purnesh Ishwarbhai Modi & Anr. 2023 SCC OnLine
SC 929 - distinguished.
Ravikant S. Patil v. Sarvabhouma S. Bagali [2006] 8 Suppl. SCR 1156:
(2007) 1 SCC 673; Rama Narang v. Ramesh Narang & Ors. [1995] 1 SCR
456 : (1995) 2 SCC 513; Navjot Singh Sidhu v. State of Punjab [2007] 1
SCR 1143 : (2007) 2 SCC 574; Sanjay Dutt v. State of Maharashtra (2009)
5 SCC 787; Lily Thomas v. Union of India [2013] 10 SCR 1130 : (2013) 7
SCC 653; Lok Prahari through General Secretary S.N. Shukla v. Election
Commission of India & Ors. [2018] 12 SCR 169 : (2018) 18 SCC 114;
Naranbhai Bhikhabhai Kachchadia v. State of Gujarat Criminal Appeal No.
418/2016; K.C. Sareen v. CBI (2001) 6 SCC 584; State of Maharashtra v.
Balakrishna Dattatraya Kumbhar [2012] 9 SCR 601 : (2012) 12 SCC 384;
Shyam Narain Pandey v. State of U.P [2014] 8 SCR 923 : (2014) 8 SCC
909; K. Prabhakaran v. P. Jayarajan [2005] 1 SCR 296 : (2005) 1 SCC 754;
Lalsai Khunte v. Nirmal Sinha (2007) 9 SCC 330; K. Anandan Nambiar, In
Re AIR 1952 Madras 117; Public Interest Foundation and others v. Union
of India and Another (2019) 3 SCC 224; Jyoti Basu v. Debi Ghosal [1982]
3 SCR 318 : (1982) 1 SCC 691; Pradeep Kumar Sonthalia v. Dhiraj Prasad
Sahu (2021) 6 SCC 523; Ashish Shelar v. Maharashtra Legislative Assembly
(2022) 12 SCC 273 - referred to.
Constituent Assembly Debates, Volume 8 (19th May, 1949) - referred
to.
973
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
3838 of 2023.
From the Judgment and Order dated 24.07.2023 of the High Court of
Judicature at Allahabad in CRLMA No. 01 of 2023.
Appearances:
Dr. Abhishek Manu Singhvi, C. U. Singh, S. Wasim A. Qadri, Sr.
Advs., Jubair Ahmad Khan, Tamim Qadri, Anuroop Chakravarti, Saeed
Qadri, Shraveen Kumar Verma, Siddarth Seem, Saahil Gupta, Ms. Udita
Singh, Advs. for the Appellant.
K.M. Nataraj, A.S.G., Sharan Dev Singh Thakur, A.A.G., Ms. Ruchira
Goel, Siddharth Thakur, Ms. Indira Bhakar, Adit Jayeshbhai Shah, Ajay
Singh, Ms. Keerti Jaya, Advs. for the Respondent.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
SURYA KANT, J.
Leave granted.
2. This appeal is directed against the order dated 24.07.2023, passed
by the High Court of Judicature at Allahabad (hereinafter, 'High Court'),
partially allowing the application fi led by the Appellant under Section 389(1)
of the Code of Criminal Procedure, 1973 (hereinafter, 'CrPC'), for the
stay on the sentence and conviction, awarded by the Learned Additional
Sessions Judge, MP/MLA Court, Ghazipur (hereinafter, 'Trial Court')
vide judgement and order dated 29.04.2023. The High Court, has through
the impugned order, suspended the Appellant's sentence and granted him
bail but the stay on conviction has been declined.
Fਁਃਔਓ:
3. At this juncture, it is imperative to delve into the factual matrix to
set out the context of the present proceedings.
AFJAL ANSARI v. STATE OF UP
974
SUPREME COURT REPORTS
[2023] 16 S.C.R.
3.1. The Appellant is a public representative, having served as a
Member of the Legislative Assembly in Uttar Pradesh for fi ve consecutive
terms, and as a Member of Parliament for two terms. Until the recent
disqualifi cation following the judgment rendered by the Trial Court, the
Appellant was the incumbent Member of Parliament for the Ghazipur
Constituency, since 2019. The Appellant currently holds various positions,
including roles in the Ghazipur Standing Committee on Agriculture,
Animal Husbandry, and Food Processing, as well as the Ghazipur District
Development Coordination and Monitoring Committee.
3.2. On 19.11.2007, PW-1, who was the Station House Offi cer at
the Mohammadabad Kotwali Police Station, received information from
anonymous sources during his routine patrol with regards to the operations of
a gang led by one Mukhtar Ansari in the area, who was reportedly involved
in various illicit activities such as murder, extortion, kidnapping and other
criminal acts, carried out for political gain. It was further informed that the
said gang had instilled fear and terror in the public, discouraging everyone
from opposing their actions. Based on such information, PW-1 prepared
a comprehensive gang chart under the Uttar Pradesh Gangsters and AntiSocial Activities (Prevention) Act, 1986 (hereinafter, 'UP Gangsters
Act') and obtained necessary approvals from the Police authorities and the
District Magistrate of Ghazipur. On the very same day, Case Crime No.
1052/2007 was registered under Section 3(1) of the UP Gangsters Act at the
Mohammadabad Police Station in the Ghazipur District of Uttar Pradesh
(hereinafter, 'New FIR'). This registration emerged from the earlier Case
Crime No. 589/2005, (hereinafter, 'Old FIR'), which was a murder case, in
which the Appellant had been accused of conspiracy but was subsequently
acquitted, as explained briefl y hereinafter.
3.3. It is crucial to emphasise at this stage that the Appellant has been
found involved in multiple FIRs fi led throughout the State of Uttar Pradesh.
To provide a concise overview, a summary of these FIRs is presented
below, elucidating their context and signifi cance in relation to the ongoing
proceedings:
i.
Case Crime No. 28/1998 was registered under Section 171F of the
Indian Penal Code, 1860 (hereinafter, 'IPC') and Section 135(2)
of the Representation of People's Act, 1951 (hereinafter, 'RPA')
975
on 16.02.1998, at Police Station Nonhara, District Chandauli,
Uttar Pradesh, for violation of the Model Code of Conduct during
the election period. The Appellant has not yet been summoned
by the investigating offi cer or the concerned Court in this case.
ii.
Case Crime No. 260/2001 was registered on 09.08.2001, at Police
Station Mohammadabad, Uttar Pradesh, under Sections 147, 148
and 353 of the IPC, and Section 3 of the Prevention of Public
Properties from Damages Act, 1984 along with Section 7 of the
Criminal Law Amendment Act, 1932. The Appellant has since
been granted bail in this case.
iii. Case Crime No. 493/2005 was registered under Sections
302, 506, 120B of the IPC on 27.06.2005, at Police Station
Mohammadabad, Uttar Pradesh in which the Appellant was
named as a conspirator. However, since the Appellant was found
to have played no particular role in the subject crime, his name
was dropped during the early stages of the investigation and no
chargesheet was fi led against him.
iv.
Case Crime No. 589/2005 was registered under Sections 147,
148, 149, 307, 302, 404 and 120-B of the IPC, at Police Station
Bhanvar Kol, District Ghazipur, on 29.11.2005. The Appellant
was accused of hatching conspiracy in the said murder case.
The investigation of this case was entrusted to the Central
Bureau of Investigation (hereinafter, 'CBI') and the trial was
subsequently transferred to the CBI Court at Rouse Avenue, New
Delhi, wherein the Appellant was acquitted. The CBI has fi led an
appeal challenging the acquittal of the Appellant, but till date no
adverse order has been suff ered by him. Further, this is the only
case mentioned in the gang chart that was prepared and relied
upon in the instant case.
v.
Crime Case No. 1051/2007 was registered under Sections
302, 120-B, 436, 427 of the IPC and Sections 3, 4 and 5 of
the Explosives Act, 1884 and Section 7 of the Criminal Law
Amendment Act, 1932. In this case, the name of the Appellant
was dropped after it was deduced that he had no role to play in
the reported crime. The Appellant was neither chargesheeted
AFJAL ANSARI v. STATE OF UP
[SURYA KANT, J.]
976
SUPREME COURT REPORTS
[2023] 16 S.C.R.
nor summoned by the concerned Trial Court in this particular
instance.
vi.
Case Crime No. 607/2009 under Sections 171 and 188 of the IPC
was registered on 11.04.2009 at Police Station, Mohammadabad,
Uttar Pradesh, alleging violation of the Model Code of Conduct
during the election period. The Appellant has admittedly not been
summoned in this case.
vii. Case Crime No. 18/2014 was registered under Sections 171J,
188 of the IPC and Section 121(2) of the RPA, at Police Station
Chakarghatta, District Chandauli, Uttar Pradesh and the Appellant
has already been granted bail in this matter.
3.4. Adverting to the New FIR, the Trial Court held the Appellant guilty
under Section 3(1) of the UP Gangsters Act and awarded him a sentence
of four years of simple imprisonment, along with a fi ne of Rs. 1,00,000/-
(Rupees One Lakh only). Consequently, Notifi cation No. S.O. 1994 dated
01.05.2023 was published by the Lok Sabha Secretariat in the Gazette of
India, disqualifying the Appellant from membership in the Lok Sabha,
eff ective from the date of his conviction on 29.04.2023.
3.5. The Appellant thereafter preferred Criminal Appeal No.
5295/2023 under Section 374(2) of the CrPC before the High Court,
challenging the judgment and order of his conviction and sentence
dated 29.04.2023 (hereinafter 'First Criminal Appeal'). He also fi led
an application under Section 389(1) of the CrPC, seeking inter alia, (i)
suspension of the sentence awarded by the judgement and order dated
29.04.2023 and his release on bail, during pendency of the First Criminal
Appeal; (ii) stay of the eff ect and operation of the judgement and order
dated 29.04.2023; and (iii) stay of realisation of fi ne during pendency of
the appeal.
3.6. As noticed earlier, the High Court has partially allowed the
application fi led by the Appellant. The execution of the sentence has been
stayed and bail has been granted but stay on conviction has been declined.
The instant appeal is thus confi ned to the Appellant's prayer for the stay
of his conviction, during the pendency of his Criminal Appeal before the
High Court.
977
CONTENTIONS OF PARTIES
4. We have heard Learned Senior Counsel for the parties at a
considerable length and perused the documents brought on record.
5. Dr. Abhishek Manu Singhvi, learned Senior Counsel for the
Appellant, argued that the High Court erred in not granting suspension
of the conviction, especially in light of the fact that disqualifi cation from
membership of the Parliament, leads to irreversible consequences such as:
(a) the loss of the next six months as Member of the Parliament in the Lok
Sabha; and (b) disqualifi cation from contesting elections for a total period
of ten years. He further contended that such a disqualifi cation would not
only result in the Appellant losing his right to represent his constituency but
would also rob his constituency of its representation before the Parliament.
Learned Senior Counsel also highlighted the infi rmities in the impugned
order of the High Court in denying stay of conviction, along with the material
contradictions in the prosecution case against the Appellant.
6. Dr. Singhvi lent support to his contentions by citing decisions of
this Court in Naranbhai Khikhabhai Kachchadia v. State of Gujarat1 and
Lok Prahari through General Secretary v. Election Commission of India
and others,2 among others.
7. Mr. K.M. Nataraj, learned Additional Solicitor General, representing
the State of UP, strongly contested the prayer for suspension of conviction
on the ground that the Appellant having been convicted under Section 3(1)
of the UP Gangster Act, with a sentence of more than two years under the
said Act, automatically suff ered disqualifi cation by virtue of Section 8 of
RPA. He underscored the contention that the stay or suspension of conviction
under S. 389(1) of the CrPC is to be granted as an exception and not as
a rule. Furthermore, Mr. Natraj vehemently contended that the right to
represent or be represented is not a Fundamental Right and the Appellant's
case cannot be deemed to be an exceptional or extraordinary circumstance
that warrants suspension of conviction. He also relied on multiple decisions
of this Court including, Lily Thomas v. Union of India3 and Sanjay Dutt
1
Crl. Appeal No. 418 / 2016.
2
(2018) 18 SCC 114, para 16.
3
(2013) 7 SCC 653, para 35.
AFJAL ANSARI v. STATE OF UP
[SURYA KANT, J.]
978
SUPREME COURT REPORTS
[2023] 16 S.C.R.
v. State of Maharashtra,4 to buttress his assertion that the suspension of
conviction ought to be done only in rare and exceptional cases.
8. In our considered opinion, the questions that fall for deliberation,
are set out as follows:
i.
What are the parameters to be considered for the suspension of
conviction under Section 389(1) of the CrPC?
ii. Whether the Appellant has made out a prima facie case for the
suspension of conviction under Section 389(1) of the CrPC?
iii. Whether conviction of an off ence involving 'moral turpitude' can
be a valid ground to deny suspension of conviction under Section
389(1) of the CrPC?
ANALYSIS
9. We have taken into consideration the Appellant's extensive history
of holding various positions of responsibility, along with the allegations
that culminated in his conviction and subsequent disqualifi cation from his
position as Member of the Parliament in the Lok Sabha.
10. At the outset, it is imperative to delineate the essential parameters
that must be meticulously examined to determine whether a case can be made
out for suspension of conviction under Section 389(1) of the CrPC. Section
389(1) enjoys upon the Appellate Court, the power to issue an order for the
suspension of a sentence or an order of conviction during the pendency of
an appeal. It may be thus of paramount importance to scrutinise the precise
language of Section 389(1) of the CrPC, which is articulated as follows:
"S. 389(1) - 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 confi nement, that he be released on bail, or on
his own bond."
11. It becomes manifestly evident from the plain language of the
provision, that the Appellate Court is unambiguously vested with the power
4
(2009) 5 SCC 787, para 12.
979
to suspend implementation of the sentence or the order of conviction under
appeal and grant bail to the incarcerated convict, for which it is imperative
to assign the reasons in writing. This Court has undertaken a comprehensive
examination of this issue on multiple occasions, laying down the broad
parameters to be appraised for the suspension of a conviction under Section
389(1) of the CrPC. There is no gainsaying that in order to suspend the
conviction of an individual, the primary factors that are to be looked into,
would be the peculiar facts and circumstances of that specifi c case, where
the failure to stay such a conviction would lead to injustice or irreversible
consequences.5 The very notion of irreversible consequences is centered on
factors, including the individual's criminal antecedents, the gravity of the
off ence, and its wider social impact, while simultaneously considering the
facts and circumstances of the case.
12. Turning to the case in hand, the Appellant was convicted on the
basis of a gang chart that hinged solely on an Old FIR, where the Appellant
had already been acquitted vide judgement dated 03.07.2019. Thereafter,
the New FIR was registered, in which the Appellant had been convicted by
the Trial Court under Section 3(1) of the UP Gangster Act. The sequence of
events, beginning from the registration of the New FIR until the rejection
of the Appellant's plea for suspension of conviction by the High Court, is
beset with some fundamental misconceptions and, therefore deserves closer
legal scrutiny.
13. Upon careful consideration of the judgement of the Trial Court
and the order passed by the High Court, it appears to us that, fi rstly, the
impugned order suggests that there is no cogent evidence to establish that
the Appellant has been indulging in anti-social activities and crimes such as
murder or ransom. Secondly, the Appellant's role in the Old FIR, which stood
as the singular reference point in the gang chart in the New FIR, had already
resulted in his acquittal. Thirdly, the impugned judgment also indicates
the absence of corroborative evidence supporting the contention that the
Appellant had been responsible for infl uencing witnesses in retracting their
statements. Lastly, the High Court in its impugned order has meticulously
highlighted that in the various FIRs that had been registered against the
5
Ravikant S. Patil v. Sarvabhouma S. Bagali, (2007) 1 SCC 673, para 15 and 16.5.
AFJAL ANSARI v. STATE OF UP
[SURYA KANT, J.]
980
SUPREME COURT REPORTS
[2023] 16 S.C.R.
Appellant, either he was not chargesheeted or the investigating agencies
had exonerated him.
14. The High Court has further held that owing to the age of the
Appellant and the extensive backlog of pending cases, the prospects of a
prompt hearing of the First Criminal Appeal were low. It thus came to the
conclusion that the refusal to suspend the sentence might render the very
appeal otiose. Although the High Court stayed the execution of the sentence
and granted bail to the Appellant, it refused to suspend the conviction
itself. The High Court justifi ed such a recourse, after making reference to
a multitude of judgments from this Court. While the impugned judgment
remains largely sound in its approach to aff ording relief in terms of bail and
staying the sentence, we are unable to agree, partly, with its approach in
declining the suspension of conviction, for those very reasons.
15. This Court has on several occasions opined that there is no
reason to interpret Section 389(1) of the CrPC in a narrow manner, in the
context of a stay on an order of conviction, when there are irreversible
consequences. Undoubtedly, Ravikant Patil v. Sarvabhouma S. Bagali,6
holds that an order granting a stay of conviction should not be the rule but
an exception and should be resorted to in rare cases depending upon the
facts of a case. However, where conviction, if allowed to operate would
lead to irreparable damage and where the convict cannot be compensated
in any monetary terms or otherwise, if he is acquitted later on, that by itself
carves out an exceptional situation. Having applied the specifi c criteria
outlined hereinabove to the present factual matrix, it is our considered
view that the Appellant's case warrants an order of stay on his award of
conviction, though partially.
16. It remains uncontested that the foundation of the New FIR,
which is the origin point of the present proceedings, rests solely on a
general statement and involved the rekindling of the Old FIR, in which the
Appellant had already been acquitted. Though the aforementioned gang
chart projects the Appellant as a repeat off ender, the fact remains that he
has not been convicted in any prior case, apart from the case presently
under consideration. In this context, the detailed circumstances elaborated
6
(2007) 1 SCC 673, para 15.
981
hereinabove, serve as compelling reasons to advocate for the suspension of
the Appellant's conviction and the consequent disqualifi cation.
17. We say so primarily for the reason that the potential ramifi cations
of declining to suspend such a conviction are multifaceted. On the one hand,
it would deprive the Appellant's constituency of its legitimate representation
in the Legislature, since a bye-election may not be held given the remainder
tenure of the current Lok Sabha. Conversely, it would also impede the
Appellant's ability to represent his constituency based on the allegations, the
veracity whereof is to be scrutinised on a re-appraisal of the entire evidence
in the First Criminal Appeal pending before the High Court. This would
potentially lead to de facto incarceration of the Appellant for a period of four
years under the UP Gangsters Act and an additional six-year disqualifi cation
period, even if he is eventually acquitted, which would eff ectively disqualify
him from contesting elections for a period of ten years.
18. It is essential to emphasize that while the Appellant did not
enumerate any material facts regarding irreversible consequences in his
application fi led before the High Court, seeking the suspension of conviction,
this principle can be traced to the statutory provisions outlined in Section
8 of the RPA. The High Court or this Court however, while exercising
their Appellate jurisdictions, are well empowered to take judicial notice of
these consequences. Additionally, the Respondent also does not contest the
fact that if the conviction is not stayed, the Appellant would not only face
disqualifi cation as a Member of the Eighteenth Lok Sabha but would also
incur disqualifi cation to participate in future elections for Parliamentary
or State Legislative seats. Taking into consideration the consistent legal
position adopted in this regard, the severity of these outcomes underscores
the urgency and gravity of the matter at hand.
19. In this context it is crucial that we also address the fi nal issue
which is before us for consideration, i.e., the question of relevance of
'moral turpitude' in the present circumstances. While contemplating to
invoke the concept of 'moral turpitude' as a decisive factor in granting
or withholding the suspension of conviction for an individual, there is a
resounding imperative to address the issue of depoliticising criminality.
There has been increasing clamour to decriminalise polity and hold elected
representatives accountable for their criminal antecedents. It is a hard truth
AFJAL ANSARI v. STATE OF UP
[SURYA KANT, J.]
982
SUPREME COURT REPORTS
[2023] 16 S.C.R.
that persons with a criminal background are potential threats to the very
idea of democracy, since they often resort to criminal means to succeed in
elections and other ventures. In the present context too, substantial doubt has
been cast upon the Appellant's criminal antecedents along with the veracity
and threat posed by these claims, in light of the many FIRs that have been
produced in these proceedings.
20. While this concern is undeniably pertinent, it remains the duty of
the courts to interpret the law in its current form. Although 'moral turpitude'
may carry relevance within the context of elected representatives, the courts
are bound to construe the law in its extant state and confi ne their deliberations
to those facets explicitly outlined, rather than delving into considerations
pertaining to the moral rectitude or ethical character of actions. This is
especially true when it is solely motivated by the convicted individual's
status as a political representative, with the aim of disqualifi cation pursuant
to the RPA.
21. Having said so, we hasten to hold that societal interest is an equally
important factor which ought to be zealously protected and preserved by
the Courts. The literal construction of a provision such as Section 389(1)
of the CrPC may be benefi cial to a convict but not at the cost of legitimate
public aspirations. It would thus be appropriate for the Courts to balance
the interests of protecting the integrity of the electoral process on one
hand, while also ensuring that constituents are not bereft of their right to
be represented, merely consequent to a threshold opinion, which is open to
further judicial scrutiny.
22. We are of the further considered opinion that, the phenomena of
docket explosion or the high backlog of cases should not be construed as
valid grounds for thwarting the legislative intent enshrined in Section 8(3)
of the RPA, which inter alia provides that:
".....(3) A person convicted of any offence and sentenced to
imprisonment for not less than two years [other than any off ence
referred to in sub-section (1) or sub-section (2)] shall be disqualifi ed
from the date of such conviction and shall continue to be disqualifi ed
for a further period of six years since his release...."
983
23. It is therefore imperative to weigh the competing interests presented
by both the Appellant and the State. This case pertains to (a) the Appellant's
disqualifi cation as a Member of the Lok Sabha under Section 8(3) of the
RPA, which disentitles a person who has been convicted and sentenced for
a period exceeding two years, from holding offi ce or contesting elections;
and (b) the State's pursuit of a conviction under Section 3(1) of the UP
Gangsters Act, which penalises individuals labelled as a 'gangster' for
participation in organised crime and engaging in anti-social activities. While
the pending appeal raises signifi cant legal and factual issues, it is exigent
that the Appellant's future not be left hanging in the balance solely due to
the said conviction. In such instances, where the Appellant's disqualifi cation
and the State's criminal proceedings intersect, it becomes incumbent upon
the Court in which the appeal is pending, to hear the matter out of turn and
expeditiously adjudicate the same.
CONCLUSION AND DIRECTIONS
24. We, thus, deem it appropriate to partially allow this appeal and
suspend the conviction awarded to the Appellant in Special Sessions
Trial No. 980/2012 subject to the following conditions, clarifi cations and
directions:
i.
The Ghazipur Parliamentary Constituency shall not be notifi ed
for bye-election, in terms of Section 151 of the RPA, till the
decision of the Appellant's criminal appeal by the High Court;
ii.
The Appellant shall, however, not be entitled to participate in
the proceedings of the House. He shall also not have the right
to cast his vote in the House or to draw any perks or monetary
benefi ts;
iii.
The continuance of MP led welfare schemes in the Ghazipur
Parliamentary Constituency without the Appellant being
associated for the release of grants for such schemes, is
not an irrevocable consequence as all such Schemes can be
given eff ect, even in the absence of the local parliamentary
representative;
iv.
The Appellant shall not be disqualified to contest future
election(s) during the pendency of his criminal appeal before
AFJAL ANSARI v. STATE OF UP
[SURYA KANT, J.]
984
SUPREME COURT REPORTS
[2023] 16 S.C.R.
the High Court and if he is elected, such election will be subject
to outcome of the First Criminal Appeal; and
v.
The High Court shall make an endeavour to decide the Appellant's
criminal appeal expeditiously and before 30.06.2024.
25. Consequently, we direct the Registrar General of the High Court
to put up this order before Hon'ble The Chief Justice of the High Court for
immediate enlisting of the Criminal Appeal No. 5295 / 2023 with a request
to the appropriate Bench, for an out of turn hearing and adjudication of
the said appeal by 30.06.2024. The Appellant is directed to extend full
cooperation to the High Court in this regard, failing which, this order shall
be liable to variance.
26. It is clarifi ed that we have not expressed any opinion on the merits
of the case and the First Criminal Appeal shall be decided by the High Court
on its own merits.
27. The present appeal is disposed of in the above terms.
DIPANKAR DATTA, J.
1. The draft of the judgment prepared by Hon'ble Surya Kant,
J., speaking for His Lordship and Hon'ble Ujjal Bhuyan, J., is so well
considered and supplemented with an enviable degree of articulation that it
almost prompted my concurrence. However, with all the respect and humility
at my command, I have not been able to be ad idem with the Hon'ble Judges
in the majority. I believe that the importance of the question involved would
compel me to tread the path of dissent en route a diff erent end.
2. The assail in this appeal is to a judgment and order dated 24th July,
2023 of the High Court of Judicature at Allahabad ("High Court", hereafter)
whereby a criminal miscellaneous application1 under section 389(1) of
the Code of Criminal Procedure, 1973 ("Cr. PC", hereafter) fi led by the
appellant, in connection with an appeal under section 374(2)2 thereof, was
partly allowed. The sole question that emerges for a decision on this appeal is
1
No. 01/2023
2
Criminal Appeal No. 5295/2023
985
whether the High Court was justifi ed in spurning the prayer of the appellant
for stay of the order appealed against while it proceeded to grant his prayer
for suspension of execution of sentence, in exercise of power conferred by
section 389(1) of the Cr. PC.
3. The appellant is a member of Parliament, having been elected to
the 17th Lok Sabha from Ghazipur constituency in 2019. He suff ered a
conviction under section 3(1) of the Uttar Pradesh Gangsters and AntiSocial Activities (Prevention) Act, 1986 ("Gangsters Act", hereafter) vide
judgment of the Special MP/MLA Court, Ghazipur ("Trial Court", hereafter)
dated 29th April, 20233, consequent whereto he was sentenced to four years
imprisonment together with a fi ne of Rupees One lakh. Aggrieved thereby,
he approached the High Court for suspension of execution of the sentence
as well as for suspension of the order appealed against which has succeeded
in part as noted above. The refusal of the High Court to stay the conviction
of the appellant has resulted in his disqualifi cation from the membership
of Parliament by operation of law, i.e., section 8(3) of the Representation
of the People Act, 1951 ("the RoP Act", hereafter), which has duly been
notifi ed by the Lok Sabha Secretariat4. As a sequel thereto, the appellant
stands barred from partaking in the electoral process for six years from the
date of serving his sentence.
4. Hon'ble Surya Kant, J. in His Lordship's judgment has given a
resume of the facts leading to the appeal carried by the appellant before this
Court. Having regard thereto as well as the question that arises for decision,
it is not considered expedient to repeat the same. However, in course of
hearing of this appeal, the parties through their respective learned senior
counsel have advanced elaborate submissions which are proposed to be
noted a little later.
5. In the impugned judgment and order, the High Court determined
that the threshold for suspension of the order under appeal was not reached
in the present case. It observed that suspension of the order appealed
against is not the rule but an exception to be availed only in rare cases
3
Special Sessions Trial No. 980/2012
4
vide notifi cation bearing S.O. No. 1994 published in the Gazette of India dated 1st
May, 2023
AFJAL ANSARI v. STATE OF UP
[DIPANKAR DATTA, J.]
986
SUPREME COURT REPORTS
[2023] 16 S.C.R.
and that exceptional circumstances have to be brought to the notice of
the Court before the relief of such a suspension could be granted. Unless
the attention of the Court is directed towards specifi c consequences that
would befall the appealing convict on account of the conviction, he cannot
urge for suspension of the order. It was noticed by the High Court that
the only ground urged by the appellant for seeking relief of suspension of
the order under appeal was that if such relief were not granted, he would
remain disqualifi ed. According to the High Court, absolutely nothing was
mentioned in the affi davit fi led by the appellant about the ramifi cations of
the conviction. Another consideration which weighed with the High Court
was the objective of the Gangsters Act, being a law enacted to maintain
public order for reining in organised crime and anti-social activities in the
state of Uttar Pradesh as well as the severity of the accusations against the
appellant. Consequently, it was ruled that although the appellant had made
out a case of suspension of execution of sentence but could not fulfi l the
conditions for staying his conviction.
6. Dr. Abhishek Manu Singhvi, learned senior counsel appearing for
the appellant, assailed the impugned order by advancing the following
submissions:
a.
The failure to stay the conviction would infl ict irreparable harm
to the appellant. There is only a primary conviction, against
which an appeal has been carried to the High Court. Having
regard to the huge pendency of appeals in the High Court, the
said appeal is not likely to be heard in the near future resulting
in the appellant being deprived of engaging in electoral politics
for around 10 years. The case is at the stage of fi rst appeal, and
refusal to stay the conviction of the appellant at this stage would
be an onerous disproportionate limitation.
b.
The appellant has been a member of the Uttar Pradesh Legislative
Assembly fi ve times and a member of the Lok Sabha twice.