Supreme Court Partially Allows Stay on Conviction in UP Gangsters Act Case: Afjal Ansari vs. State of UP (2023) INSC 1071

LEGAL ISSUE: Suspension of conviction under Section 389(1) of the Code of Criminal Procedure, 1973 (CrPC).
CASE TYPE: Criminal Law, specifically related to the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986.
Case Name: Afjal Ansari vs. State of UP
[Judgment Date]: 14 December 2023

Date of the Judgment: 14 December 2023
Citation: 2023 INSC 1071
Judges: Surya Kant, J., Ujjal Bhuyan, J., and Dipankar Datta, J. (Majority opinion by Surya Kant, J., with a dissenting opinion by Dipankar Datta, J.)
Can a public representative, disqualified due to a conviction, have their conviction stayed to prevent irreversible consequences? The Supreme Court recently addressed this question in the case of Afjal Ansari vs. State of UP. The core issue revolves around whether the High Court was correct in refusing to stay the conviction of a Member of Parliament (MP) under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, despite suspending his sentence.

Case Background

The appellant, Afjal Ansari, was a Member of the Legislative Assembly in Uttar Pradesh for five consecutive terms and a Member of Parliament for two terms. He was the incumbent Member of Parliament for the Ghazipur Constituency since 2019 until his recent disqualification. On 19.11.2007, the Station House Officer at Mohammadabad Kotwali Police Station received information about a gang led by Mukhtar Ansari involved in illicit activities. Based on this, a gang chart was prepared under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 (UP Gangsters Act), and a new FIR (Case Crime No. 1052/2007) was registered under Section 3(1) of the UP Gangsters Act. This new FIR was based on an earlier murder case (Case Crime No. 589/2005) in which the Appellant was acquitted.

The Appellant has been involved in multiple FIRs throughout Uttar Pradesh, including:

• Case Crime No. 28/1998 (16.02.1998): Violation of the Model Code of Conduct.
• Case Crime No. 260/2001 (09.08.2001): Sections 147, 148, and 353 of the Indian Penal Code (IPC), and Section 3 of the Prevention of Public Properties from Damages Act, 1984.
• Case Crime No. 493/2005 (27.06.2005): Sections 302, 506, 120B of the IPC, dropped during investigation.
• Case Crime No. 589/2005 (29.11.2005): Sections 147, 148, 149, 307, 302, 404, and 120-B of the IPC, in which the Appellant was acquitted.
• Case Crime No. 1051/2007: Sections 302, 120-B, 436, 427 of the IPC and Sections 3, 4, and 5 of the Explosives Act, 1884, dropped during investigation.
• Case Crime No. 607/2009 (11.04.2009): Sections 171 and 188 of the IPC, violation of Model Code of Conduct.
• Case Crime No. 18/2014: Sections 171J, 188 of the IPC and Section 121(2) of the Representation of People’s Act, 1951 (RPA).

The Trial Court found the Appellant guilty under Section 3(1) of the UP Gangsters Act and sentenced him to four years of simple imprisonment and a fine of Rs. 1,00,000. Consequently, the Appellant was disqualified from membership in the Lok Sabha, effective from 29.04.2023. The Appellant then filed a Criminal Appeal (No. 5295/2023) before the High Court, challenging his conviction and sentence.

Timeline

Course of Proceedings

The Appellant filed a Criminal Appeal (No. 5295/2023) before the High Court, challenging the Trial Court’s judgment. He also sought (i) suspension of the sentence, (ii) stay of the conviction, and (iii) stay of the realization of fine. The High Court partially allowed the application, suspending the sentence and granting bail but declined to stay the conviction. The present appeal before the Supreme Court is limited to the prayer for the stay of conviction.

Legal Framework

The primary legal provisions discussed in this judgment are:

• Section 389(1) of the Code of Criminal Procedure, 1973 (CrPC): This section grants the Appellate Court the power to suspend the execution of a sentence or order appealed against, and to release a convicted person on bail. The exact language of Section 389(1) of the CrPC is:
  
  “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 confinement, that he be released on bail, or on his own bond.”
• Section 3(1) of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 (UP Gangsters Act): This section defines the offense of being a gangster and its punishment.
• Section 8 of the Representation of the People Act, 1951 (RPA): This section deals with the disqualification of a person from contesting elections or holding office upon conviction of certain offenses. Specifically, Section 8(3) of the RPA states:
  
  “…..(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….”

Arguments

Appellant’s Arguments (Dr. Abhishek Manu Singhvi):

• The High Court erred in not suspending the conviction, especially since disqualification from Parliament leads to irreversible consequences, including loss of representation for his constituency and a ten-year ban on contesting elections.
• The appellant has a strong case for suspension based on infirmities in the Trial Court’s judgment and material contradictions in the prosecution’s case.
• The appellant’s constituency is unrepresented in Parliament due to his disqualification.
• The execution of projects under the Members of Parliament Local Area Development Scheme (MPLAD) initiated by the appellant is now uncertain.
• Balance of convenience favors the appellant as he would suffer irreversible harm if the conviction is not stayed.

Respondent’s Arguments (Mr. K.M. Nataraj, Additional Solicitor General):

• Stay of conviction is an exception, not a rule, and should be granted only in rare cases.
• The Appellant was convicted under Section 3(1) of the UP Gangsters Act, and the sentence was more than two years, which automatically disqualifies him under Section 8 of the RPA.
• The right to represent or be represented is not a Fundamental Right.
• The Appellant has a criminal history, and the acquittal in Case Crime No. 589/2005 was due to witness intimidation.

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for deliberation:

1. What are the parameters to be considered for the suspension of conviction under Section 389(1) of the CrPC?
2. Whether the Appellant has made out a prima facie case for the suspension of conviction under Section 389(1) of the CrPC?
3. Whether conviction of an offence involving ‘moral turpitude’ can be a valid ground to deny suspension of conviction under Section 389(1) of the CrPC?

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

• Ravikant S. Patil v. Sarvabhouma S. Bagali, (2007) 1 SCC 673 (Supreme Court of India): This case was cited to emphasize that an order granting a stay of conviction is not the rule but an exception, to be resorted to in rare cases where failure to stay the conviction would lead to injustice and irreversible consequences.
• Rama Narang v. Ramesh Narang & Ors., (1995) 2 SCC 513 (Supreme Court of India): This case was used to highlight that Section 389(1) of the CrPC should not be interpreted narrowly, and courts can stay a conviction if it leads to disqualification under other laws.
• Naranbhai Khikhabhai Kachchadia v. State of Gujarat, Crl. Appeal No. 418/2016 (Supreme Court of India): This case was cited to support the argument that adverse consequences would follow not only to the appellant but also to his constituents if the conviction remains.
• Lok Prahari through General Secretary v. Election Commission of India and others, (2018) 18 SCC 114 (Supreme Court of India): This case was cited to reiterate that upon the stay of a conviction under Section 389 CrPC, the disqualification under Section 8 of the RPA will not operate.
• Lily Thomas v. Union of India, (2013) 7 SCC 653 (Supreme Court of India): This case was used to emphasize that the power to stay a conviction should be exercised only in exceptional cases.
• Sanjay Dutt v. State of Maharashtra, (2009) 5 SCC 787 (Supreme Court of India): This case was cited to argue that the suspension of conviction should be done only in rare and exceptional cases.
• Navjot Singh Sidhu v. State of Punjab, (2007) 2 SCC 574 (Supreme Court of India): This case was cited to support the view that courts must interpret the law as it stands and not on considerations which may be perceived to be morally more correct or ethical.
• K.C. Sareen v. CBI, (2001) 6 SCC 584 (Supreme Court of India): This case was cited to argue that when a public servant is convicted of corruption, the appellate court should not suspend the order of conviction during the pendency of the appeal.
• State of Maharashtra v. Balakrishna Dattatraya Kumbhar, (2012) 12 SCC 384 (Supreme Court of India): This case was cited to emphasize that the conviction of public servants in corruption cases cannot be suspended merely because they would otherwise lose their jobs.
• Shyam Narain Pandey v. State of U.P., (2014) 8 SCC 909 (Supreme Court of India): This case was cited to stress the exceptionality of the power to suspend the conviction.
• K. Prabhakaran v. P. Jayarajan, (2005) 1 SCC 754 (Supreme Court of India): This case was cited to clarify that what is suspended under Section 389 is the execution of the sentence, not the conviction itself.
• Lalsai Khunte v. Nirmal Sinha, (2007) 9 SCC 330 (Supreme Court of India): This case was cited to distinguish between suspension of sentence and stay of conviction, emphasizing that suspension does not mean a stay.
• Rahul Gandhi v. Purnesh Ishwarbhai Modi & Anr., 2023 SCC OnLine SC 929 (Supreme Court of India): This case was cited to highlight the far-reaching consequences of Section 8(3) of the RPA.
• K. Anandan Nambiar, In Re, AIR 1952 Madras 117 (High Court of Judicature at Madras): This case was cited to highlight that a member of the Legislative Assembly who is detained in prison cannot claim any superior right to participate in the session of the Assembly.
• Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691 (Supreme Court of India): This case was cited to emphasize that the right to elect and to be elected are statutory rights, not fundamental or common law rights.
• Pradeep Kumar Sonthalia v. Dhiraj Prasad Sahu, (2021) 6 SCC 523 (Supreme Court of India): This case was cited to emphasize that the court is not dealing with a Fundamental Right or a common law right while interpreting Section 8(3) of the RPA.
• Ashish Shelar v. Maharashtra Legislative Assembly, (2022) 12 SCC 273 (Supreme Court of India): This case was cited to emphasize that the right to vote and be represented is not an absolute right.

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• Ravikant S. Patil v. Sarvabhouma S. Bagali, (2007) 1 SCC 673:* The Court followed this authority to emphasize that stay of conviction should be an exception and not the rule.
• Rama Narang v. Ramesh Narang & Ors., (1995) 2 SCC 513:* The Court followed this authority to highlight that Section 389(1) of the CrPC should not be interpreted narrowly and courts can stay a conviction if it leads to disqualification.
• Naranbhai Khikhabhai Kachchadia v. State of Gujarat, Crl. Appeal No. 418/2016:* The Court distinguished this authority on facts, noting that the relief was granted based on specific facts rather than a general principle.
• Lok Prahari through General Secretary v. Election Commission of India and others, (2018) 18 SCC 114:* The Court followed this authority to reiterate that upon the stay of a conviction under Section 389 CrPC, the disqualification under Section 8 of the RPA will not operate.
• Lily Thomas v. Union of India, (2013) 7 SCC 653:* The Court followed this authority to emphasize that the power to stay a conviction should be exercised only in exceptional cases.
• Sanjay Dutt v. State of Maharashtra, (2009) 5 SCC 787:* The Court followed this authority to argue that the suspension of conviction should be done only in rare and exceptional cases.
• Navjot Singh Sidhu v. State of Punjab, (2007) 2 SCC 574:* The Court followed this authority to support the view that courts must interpret the law as it stands and not on considerations which may be perceived to be morally more correct or ethical.
• K.C. Sareen v. CBI, (2001) 6 SCC 584:* The Court followed this authority to argue that when a public servant is convicted of corruption, the appellate court should not suspend the order of conviction during the pendency of the appeal.
• State of Maharashtra v. Balakrishna Dattatraya Kumbhar, (2012) 12 SCC 384:* The Court followed this authority to emphasize that the conviction of public servants in corruption cases cannot be suspended merely because they would otherwise lose their jobs.
• Shyam Narain Pandey v. State of U.P., (2014) 8 SCC 909:* The Court followed this authority to stress the exceptionality of the power to suspend the conviction.
• K. Prabhakaran v. P. Jayarajan, (2005) 1 SCC 754:* The Court followed this authority to clarify that what is suspended under Section 389 is the execution of the sentence, not the conviction itself.
• Lalsai Khunte v. Nirmal Sinha, (2007) 9 SCC 330:* The Court followed this authority to distinguish between suspension of sentence and stay of conviction, emphasizing that suspension does not mean a stay.
• Rahul Gandhi v. Purnesh Ishwarbhai Modi & Anr., 2023 SCC OnLine SC 929:* The Court distinguished this authority on facts, noting that the relief was granted based on specific facts rather than a general principle.
• K. Anandan Nambiar, In Re, AIR 1952 Madras 117:* The Court followed this authority to highlight that a member of the Legislative Assembly who is detained in prison cannot claim any superior right to participate in the session of the Assembly.
• Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691:* The Court followed this authority to emphasize that the right to elect and to be elected are statutory rights, not fundamental or common law rights.
• Pradeep Kumar Sonthalia v. Dhiraj Prasad Sahu, (2021) 6 SCC 523:* The Court followed this authority to emphasize that the court is not dealing with a Fundamental Right or a common law right while interpreting Section 8(3) of the RPA.
• Ashish Shelar v. Maharashtra Legislative Assembly, (2022) 12 SCC 273:* The Court followed this authority to emphasize that the right to vote and be represented is not an absolute right.

What weighed in the mind of the Court?

The Supreme Court’s decision was influenced by a combination of legal principles and factual circumstances. The Court emphasized the need to balance the individual’s rights with the integrity of the electoral process. The Court considered the irreversible consequences of not staying the conviction, including the loss of representation for the appellant’s constituency and the potential impact on his political career. However, the Court also recognized the importance of upholding the rule of law and preventing the criminalization of politics.

Final Order

The Supreme Court partially allowed the appeal and stayed the conviction of the Appellant. The Court noted that the foundation of the new FIR rested on a general statement and the rekindling of an old FIR in which the Appellant was acquitted. The Court clarified that the stay of conviction would be effective only for the purposes of Section 8 of the RPA, and the disqualification of the Appellant from being a Member of Parliament would be held in abeyance. The Supreme Court did not interfere with the suspension of sentence.

Dissenting Opinion (Dipankar Datta, J.)

Justice Dipankar Datta disagreed with the majority view. He opined that the appellant had not made out a case for stay of conviction and that the High Court was right in not staying the conviction. He emphasized that the power to stay a conviction should be exercised only in exceptional cases.

Flowchart of the Case

Conclusion

The Supreme Court’s decision in Afjal Ansari vs. State of UP (2023) INSC 1071 underscores the nuanced approach required when dealing with the suspension of convictions under Section 389(1) of the CrPC. The Court highlighted that while the power to stay a conviction is exceptional, it should be exercised when failure to do so would lead to injustice and irreversible consequences. The decision also clarifies the interplay between the CrPC and the RPA, particularly concerning the disqualification of elected representatives. This case sets an important precedent for similar cases, emphasizing the balance between individual rights and the integrity of the electoral process.