The Allahabad High Court has refused to stay the two-year jail sentence awarded to Mohammad Abdullah Azam Khan for creating ruckus by blocking the highway.
A Single Bench of Justice Rajiv Gupta passed this order while hearing a Criminal Misc Application under Section 389(2) Cr.P.C filed by Mohammad Abdullah Azam Khan.
The application under Section 389(2) Cr.P.C has been filed by the applicant with the prayer to set aside the order dated 28.02.2023 passed by the Additional Sessions Judge, Moradabad in Criminal Appeal and stay the order of conviction dated 13.02.2023 passed by Ist Additional Chief Judicial Magistrate, Moradabad in Criminal Case under Sections 353/341 IPC and Section 7 of Criminal Law Amendment Act, Police Station Chhajlet, District Moradabad.
The facts giving rise to the application are that on 02.01.2008, an FIR was lodged at the Police Station Chhajlet, District Moradabad alleging therein that an information was transmitted that a Pajero car with red beacon on its top and dark coloured window glasses is coming in a suspicious condition from Moradabad to Kanth Road. On getting the said information, Station Officer along with police force reached at the place of incident.
At about 11.30 AM, a black coloured Pajero car with red beacon on its top having Registration reached there and the said vehicle was intercepted by the Station Officer Asaf Ali Khan. On enquiry, the driver of the vehicle produced a photocopy of his driving license, however, he did not disclose his name and rather stated that his name is mentioned in the driving license itself.
He further stated that the person, lying on the rear seat of the car, is his father Mohd Azam Khan and you do not know his status and dares to intercept him.
It is further stated that suddenly, Mohd Azam Khan alighted from the car and stated that he is an MLA of Samajwadi Party and Ex-Minister and Lifetime Chancellor of Maulana Mohammad Ali Jauhar University, Rampur and how he dared to stop his vehicle. He started making calls from his mobile phone. The police party challaned the vehicle under the Motor Vehicles Act, however, the driver refused to sign the said challan. Mohd Azam Khan then threatened to set his car on fire, which may result in breach of peace in the entire State.
He, thereafter called a number of political leaders and workers of Samajwadi Party over his mobile phone and started giving provocative speeches against the Government and blocked the public road on Moradabad-Haridwar Highway causing great inconvenience to the general public. The nominated accused persons, namely, Mohd. Azam Khan, Mohd Abdullah Azam Khan, Rajesh Yadav, D.P Yadav, Raj Kumar Prajapati, Haji Ikram Quraishi, all residents of Moradabad, Mahboob Ali, resident of Amroha, Manoj Paras and other unknown 1000-1200 workers of Samajwadi Party blocked the entire highway and started raising slogans and thereafter, left the place of incident leaving behind the vehicle.
On the basis of the said allegations, FIR was registered against the nominated accused persons under Sections 147, 353 and 341 IPC and Section 7 of Criminal Law Amendment Act. After registration of the case, the police thoroughly investigated the matter and after concluding the investigation, submitted the charge-sheet against the applicant including other co-accused persons under Sections 147, 353, 341 IPC and Section 7 of Criminal Law Amendment Act.
After necessary legal formalities, the charges were framed against the applicant, to which he did not plead guilty and claimed to be tried. Thereafter, statements of the witnesses were recorded and after a full-fledged trial, the applicant along with his father were convicted for the offence under Section 353 IPC and awarded the sentence of two years of simple imprisonment with a fine of Rs 2,000/- each, further under Section 341 IPC and awarded the sentence of one month simple imprisonment with a fine of Rs 500/- each, further under Section 7 of Criminal Law Amendment Act and awarded the sentence of six months simple imprisonment with a fine of Rs 500/- each, with default stipulations.
Being aggrieved and dissatisfied with the said order dated 13.02.2023, the applicant preferred an appeal before the Sessions Judge, Moradabad under Section 374 CrPC. Along with the said appeal, an application was also filed for suspending the sentence and releasing the applicant on bail and further, under Section 389(2) CrPC, another application was also filed for staying the conviction of the applicant till the disposal of the appeal. The appeal was admitted and the prayer for suspension of sentence till the disposal of the appeal has been allowed and the applicant has been directed to released on bail, however, the application for stay of conviction during the pendency of the appeal has been rejected vide order dated 28.02.2023 passed by Additional Sessions Judge, Moradabad.
Being aggrieved and dissatisfied by the aforesaid order dated 28.02.2023, rejecting the prayer for stay of conviction present application under Section 389(2) Cr.P.C has been filed and a prayer has been made for stay of conviction by setting aside the impugned order dated 28.02.2023.
Counsel for the applicant, seeking stay of applicant’s conviction, has made two fold submissions before the Court. The first submission being that on the date of incident i.e on 02.01.2008, the applicant was a minor, however, the trial court illegally proceeded with the entire trial treating him to be an adult, as such, his entire trial stands vitiated and, therefore, till the disposal of the appeal, the conviction recorded against the applicant by the court below be stayed.
Per contra, Additional Advocate General has supported the impugned orders and has submitted that impugned order dated 28.02.2023 passed by the appellate court rejecting the prayer for stay of conviction is just, proper and legal and does not call for any interference.
The Court observed that,
Having considered the rival submissions made by counsel for the parties and on perusal of the record, it is evident that the applicant is pleading for stay of his conviction on the ground that at the time of incident, he was a minor, however, he has been illegally tried as an adult along with other co-accused, as such, the entire trial stands vitiated and during pendency of the appeal, the conviction recorded against the applicant is liable to be stayed. The said contention of counsel for the applicant is wholly unsustainable and liable to be repelled. Until and unless the applicant has been held to be a minor, he cannot be extended the benefit of a minor as now claimed by him. During the course of trial, the applicant has never claimed himself to be a minor by moving an application for the same as held by the Apex Court in the case of Vimal Chaddha Vs Vikas Chaudhary and Another reported in (2008) AIR SCW 4259, and as such, since the applicant has not been held to be a minor, therefore, the trial against him rightly proceeded as an adult along with the other co accused and he has rightly been convicted and sentenced. By no stretch of imagination, the trial on this ground can be said to be vitiated and his conviction be stayed till the disposal of the appeal.
Furthermore, the plea raised by the applicant that since he has been held to be a minor in the election petition, as such, in the instant criminal trial also, he should have been presumed to be a “minor” and accordingly tried by the competent court and not by the instant trial court, which has illegally convicted and sentenced him, as such, the trial stands vitiated and his conviction is liable to be stayed. The said plea is also wholly unsustainable and has no legs to stand. Admittedly, proceedings of the election petition filed under Section 100 of the Representation of People Act and the civil appeal arising therefrom are based on entirely different issue dealing with disqualification and has no bearing on the instant criminal trial as clarified by the Apex Court in Review Petition in Civil Appeal, wherein it has been observed that criminal case against the applicant, if any, pending in reference to the same self subject may be decided on its own merits, thus the applicant cannot get any benefit out of the said proceedings, which may vitiate the trial.
In fact, the applicant is trying to seek stay of his conviction on absolutely non-existent grounds. It is a well-settled principle of law that a stay of conviction is not a rule but an exception to be resorted to in rare cases. Disqualification is not limited only to M.Ps/M.L.As. Moreover, as many as 46 criminal cases are pending against the applicant. It is now the need of the hour to have purity in politics. Representatives of people should be men of clear antecedent.
In the backdrop of the said circumstances, refusal to stay the conviction would not, in any way, result in injustice to the applicant.
“In view of the foregoing discussions, in my considered opinion, there is no reasonable ground to stay the conviction of the applicant in the facts and circumstances of the case. The impugned order passed by the appellate court is just, proper and legal and does not call for any interference”, the Court further observed while dismissing the application.