The Lucknow Bench of the Allahabad High Court has stayed the conviction of actor and Congress leader Raj Babbar in connection with a 1996 case lodged against him for allegedly assaulting a polling officer.
A Single Bench of Justice Mohd Faiz Alam Khan passed this order while hearing a Criminal Misc Bail Application filed by Raj Babbar.
The application under Section 389(2) Cr.P.C has been moved by the applicant- Raj Babbar with the prayer to set-aside the order dated 19.09.2022 passed by the Sessions Judge, Lucknow (Appellate Court) in Criminal Appeal, arising out of the order dated 07.07.2022 passed by the Third Additional Chief Judicial Magistrate, Lucknow in Criminal Case, arising out of F.I.R Police Station Wazirganj, Lucknow, under Sections 143, 332, 353 and 323 I.P.C with the further prayer to suspend the effect, execution and operation of conviction order dated 07.07.2022 passed by the Third Additional Chief Judicial Magistrate, Lucknow, arising out of F.I.R/Case Police Station Wazirganj, Lucknow, during the pendency of Criminal Appeal pending before the Additional Sessions Judge/Special Judge, M.P/M.L.A, Lucknow.
Counsel for the applicant while drawing the attention of the Court towards the order of date 19.09.2022 passed by the Sessions Judge, Lucknow, submitted that in consequence of an F.I.R lodged on the basis of false and concocted facts a tainted investigation was done and without there being sufficient material/evidence against the applicant, the charge-sheet has been submitted and thereafter the trial was conducted before the Court of Magistrate and despite there was no cogent/ trustworthy evidence produced before the trial court and the star witnesses of the alleged crime were also not reliable so far as the role of the applicant in the alleged crime is concerned, the trial court has convicted the applicant and they have specifically stated that applicant has not assaulted them, for committing offences under Sections 143, 332, 353 and 323 I.P.C and sentenced him with six months rigorous imprisonment pertaining to Section 143 I.P.C, two years’ imprisonment for 332 I.P.C, one year imprisonment for 353 I.P.C and six months imprisonment for Section 323 I.P.C along with fine and default clause.
It is vehemently submitted that the trial court has materially erred in convicting the applicant on the basis of untrustworthy and shaky evidence of the prosecution witnesses.
Rajesh Kumar Singh, A.G.A-I appearing for the State on the other hand submitted that he be provided some time to file detailed objections. However, while drawing the attention of the Court towards certain portions of the judgment of the trial court, it is submitted that the testimony of a witness is to be read in whole and the same cannot be read in piecemeal and if the testimony of two star witnesses of this alleged crime would be read in total, it would be evident that the standard of ‘proof beyond reasonable doubt’ was achieved and, therefore, no illegality has been done by the trial court in convicting the applicant, moreover, there is no illegality so far as the rejection of the request of the applicant pertaining to the stay of his conviction is concerned as for stay of conviction an extraordinary case or exceptional case is required to be shown.
The Court observed that,
Having heard counsel for the parties and having perused the record, the factual matrix of the case appears to be not in dispute. It is admitted to the parties that applicant was convicted by the trial court in the manner described herein-before and after being convicted and sentenced for a maximum period of two years pertaining to the offence under Section 332 I.P.C and in other offences as shown in para no 5 of the order, he approached the appellate court and filed an appeal against the conviction and simultaneously while moving an application for suspension of sentence he also moved an application for stay of conviction.
It is also evident that while the sentence was suspended by the trial court, by passing order dated 19.09.2022, the prayer of the applicant for stay of conviction was rejected on the ground that the appellate court is intending to hear and dispose of the appeal on the next date of listing. The law with regard to the manner in which an application for stay of conviction would be dealt with is now no more res integra and has been set at rest by the Supreme Court in Catena of Judgments.
Thus, in view of the aforesaid discussion, a clear picture emerges to the effect that, the Appellate Court in a suitable case of exceptional nature, may put the conviction in abeyance along with the sentence, but such power must be exercised with great circumspection and caution, for the purpose of which, the applicant must satisfy the Court as regards the evil that is likely to befall him, if the said conviction is not suspended. The Court has to consider all the facts as are pleaded by the applicant, in a judicious manner and examine whether the facts and circumstances involved in the case are such, that they warrant such a course of action by it. The court additionally, must record in writing its reasons for granting such relief.
Perusal of the judgment of the trial court would also be relevant at this stage so as the assess quality of evidence which has been produced before the trial court in support of the accusation, which in the considered opinion of this Court, would also be relevant in order to assess the prospects of the appellant in the appeal, which has been preferred by him.
The Court said that it is also to be recalled that the judgement of a criminal case consists of two parts, at first; a duty of the trial court is/was to hold as to in what penal sections the applicant or an accused may be convicted, having regard to the nature of evidence produced before it and the second part of the judgement, which is equally important starts after conviction for proportionate sentencing, wherein a duty is casted on the trial court to see as to what appropriate punishment may be imposed on the accused person having regard to the peculiar facts and evidence tendered in that case and in this regard no straight-jacket formula may be formulated. What emerging as the most disturbing part of the judgement of the trial court, is that while being conscious that an accused person, who is affiliated with a political party, is going to be sentenced and inflicting imprisonment of two years or more would attract a bar for the applicant to contest any election absolutely, no reason has been given by the trial court as to why the sentence of two years has been awarded to the applicant vis-a-vis the nature of evidence tendered/available against him and as to why the benefit of probation of First Offender Act may not be extended to the applicant, which was mandatory for the trial court to consider in view of Section 360 and 361 of the Code of Criminal Procedure. It is to be recalled that even at the stage of sentencing it is the duty of the trial court to look into the evidence which has been tendered during the trial.
Thus, having regard to all the facts and circumstances of the case and the law discussed above, the Court opined, while granting an opportunity to file counter affidavit/objections to the State having regard to the urgency shown by the applicant, which appears to be genuine, his conviction as accorded by the trial court vide judgment and order dated 07.07.2022 passed by the Third Additional Chief Judicial Magistrate, Lucknow in Criminal Case under Sections 143, 323, 332 and 353 I.P.C may be stayed/suspended, during the pendency of the application.
The Court provided that during the pendency of this application, the conviction of the applicant- Raj Babbar as recorded vide judgment and order dated 07.07.2022 passed by the Third Additional Chief Judicial Magistrate, Lucknow in Criminal Case under Sections 143, 332, 353 and 323 I.P.C, appeal against which is pending before the Additional Sessions Judge/Special Judge, M.P/M.L.A, Lucknow shall remain stayed/suspended/in abeyance.
The Court has fixed the next hearing of the petition on 1st May, 2024