The Allahabad High Court has granted bail to Afzal Ansari, convicted in the gangster case. However, there is no stay on his sentence. Due to which his membership of Parliament will not be restored.
A Single Bench of Justice Raj Beer Singh passed this order while hearing a Criminal Appeal filed by Afzal Ansari.
The application has been filed by the appellant under section 389(1) Code of Criminal Procedure, seeking following prayer:-
“It is, therefore, Most Respectfully Prayed that the Court may graciously be pleased to allow the application and suspend the sentence awarded by the order dated 29.04.2023 passed by Additional Sessions Judge/Special Judge, M.P/M.L.A Court, Ghazipur in Special case under Section 3(1) of The Uttar Pradesh Gangsters & Anti Social Activities (Prevention) Act, 1986, arising out of case under Section 3(1) of The Uttar Pradesh Gangsters & Anti Social Activities (Prevention) Act, 1986, Police Station Mohammadabad, District Ghazipur and further be pleased to release the appellant on bail in the aforesaid case during pendency of the criminal appeal before the Court.
It is further prayed that the Court may be pleased to stay the effect and operation of the order dated 29.04.2023 passed by Additional Sessions Judge/Special Judge, M.P/M.L.A Court, Ghazipur in Special case under Section 3 (1) of The Uttar Pradesh Gangsters & Anti Social Activities (Prevention) Act, 1986, arising out of case under Section 3 (1) of The Uttar Pradesh Gangsters & Anti Social Activities (Prevention) Act, 1986, Police Station Mohammadabad, District Ghazipur.
It is further prayed that the realization of fine should also be stayed by the Court during pendency of the appeal before the Court, otherwise, the Appellant shall suffer an irreparable loss and injury.
And or to Pass any such other or further order as the Court may deem fit and proper in the facts and circumstances of the case.”
The appellant has been convicted under section 3(1) of Uttar Pradesh Gangsters & Anti Social Activities (Prevention) Act, 1986 (hereinafter referred to as Gangster Act) and sentenced to 4 years imprisonment with fine of Rs One lac, vide judgment and order dated 29.04.2023, passed by the Additional Sessions Judge / Special Judge, MP/MLA Court, Ghazipur, P.S Mohammadabad, District Ghazipur.
G.S Chaturvedi, Senior Advocate submitted that the Trial Court has not appreciated evidence in correct perspective and there is no credible evidence that appellant is a member of any gang or that he falls within the ambit of Gangster under the Gangster Act. The appellant has been Member of Legislative Assembly of Uttar Pradesh for 5 times and member of Parliament for two times.
Presently, the appellant was member of Parliament from Ghazipur Constituency since 2019 , but now after the judgment of Trial Court, he has been disqualified from the membership. It was submitted that the appellant has been falsely implicated in this case due to political rivalry.
It was submitted that initially, appellant was named as an accused of conspiracy in a murder case registered as Case under Sections 147, 148, 149, 307, 302, 404, 120-B I.P.C on 29.11.2005 at Police Station-Bhanvar Kol, District-Ghazipur.
Subsequently, that case was investigated by C.B.I and the case was transferred to C.B.I Court at Rouse Avenue, New Delhi and he has been acquitted by the court of Special Judge (P.C Act)/C.B.I/ M.P/M.L.A Court, Rouse Avenue, New Delhi.
Against the judgment of acquittal, an appeal has been filed by C.B.I, but so far no adverse order has been passed against the appellant. The provisions of Gangster Act were invoked against the appellant on the basis aforesaid case only. A single gang chart was prepared in the matter. Neither any separate gang chart was prepared in the matter of appellant nor there was any separate approval by the District Magistrate for imposition of Gangster Act but despite that, the Trial Court proceeded with the matter after framing charges against the appellant.
Senior Advocate submitted that on the basis of evidence adduced before the Trial Court, no offence under Gangster Act, is made out against the appellant and he has been wrongly convicted by the Trial Court. The Trial Court has failed to appreciate the evidence in accordance with law. Besides the case shown in gang chart, the appellant has been falsely implicated in 6 more cases, out of them, one Case is under Section 171, 188 I.P.C for alleged violation of Model Code of Conduct during Election period and appellant has never been summoned in that case.
It was submitted that only two cases were registered against the appellant after the present case of the Gangster Act and both the said cases are regarding violation of Model Code of Conduct and said cases were registered due to political enmity.
The appellant is a senior citizen and political person and that during trial, he has been on bail and he has never misused the liberty of bail.
It was further submitted that the appellant is aged about 70 years and he is suffering from several ailments.
Additional Advocate General appearing for the State has opposed the application and argued that conviction of the appellant is based on evidence. The Trial Court has assigned cogent reasons while convicting the appellant. The appellant may have a long political career but he is a hardened criminal. Though, during trial the appellant was on bail but he has misused his liberty of bail.
It was submitted that the appellant has a criminal history of several cases.
The Court noted that,
It is apparent that provisions of section 389(1) CrPC empower the Appellate Court to order that the execution of the sentence or order appealed against be suspended pending the appeal. What can be suspended under this provision is the execution of the sentence or the execution of the order, which is capable of execution. The discretion under section 389(1) CrPC is to be exercised judicially. The appellate Court has to consider whether any cogent ground has been disclosed giving rise to substantial doubts about the validity of conviction. Likelihood of unreasonable delay in disposal of appeal is also a relevant factor, as referred in case of Preet Pal Singh (supra).
In certain situations the order of conviction can be executable, in the sense, it may incur a disqualification as in the case. In such a case the power under Section 389(1) Cr.P.C could be invoked but 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) Cr.P.C it is under an obligation to support its order ‘for reasons to be recorded by it in writing’. One of the essential ingredients of Section 389(1) Cr.P.C is the requirement for the appellate Court to record reasons in writing for ordering suspension of execution of the sentence or order appealed against.
The Court observed that,
In view of aforesaid, particularly considering nature of evidence adduced before the trial court, quantum of sentence awarded by the trial court, the period already undergone by the appellant, age of appellant, likelihood of unreasonable delay in disposal of the appeal and all attending facts and circumstances of the case, the court is of view that a case for suspension of sentence and grant of bail during pendency of the appeal is made out.
Thus, it is apparent that an order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case. Where the execution of the sentence is stayed, the conviction continues to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. The appellate court can suspend or grant stay of order of conviction, but the person seeking stay of conviction should specifically draw the attention of the appellate court to the consequences that may arise if the conviction is not stayed. Unless the attention of the court is drawn to the specific consequences that would follow on account of the conviction, the person convicted cannot obtain an order of stay of conviction. Further, grant of stay of conviction can be resorted to in rare cases depending upon the special facts of the case but such power must be exercised with great circumspection and caution. Only in an exceptional case, the appellate court may put the conviction in abeyance along with the sentence.
After giving thoughtful consideration to all attending facts of the case, nature of offence of which the appellant has been convicted and the aforesaid position of law, the Court is of the view that the case does not fall within the ambit of such rare case so as to warrant suspension of conviction of appellant and thus, no case for suspension or stay of conviction of appellant is made out. It is correct that the Court is allowing the prayer of suspension of sentence during pendency of appeal, but as stated above, the legal position and parameters for stay of conviction are quite different, the Court further observed.
The Court allowed the prayer for suspension of execution of sentence during pendency of the appeal.
The Court ordered that,
In view of aforesaid, the prayer for stay of conviction of appellant is refused and hereby rejected.
Let the appellant Afzal Ansari convicted and sentenced in aforesaid case be released on bail during pendency of the appeal, subject to furnishing a personal bond and two sureties of like amount to the satisfaction of the Trial Court concerned, with following conditions:
(i) that the appellant shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the cases pending against him.
(ii) that the appellant shall not tamper with the evidence in any case pending against him and that the appellant shall not pressurize/ intimidate the prosecution witness;
(iii) that the appellant shall not leave India without the previous permission of the court;
It is directed that realisation of 50% of the fine imposed by the Trial Court shall remain stayed during pendency of the appeal.