Allahabad High Court: In a criminal miscellaneous application under Section 389(2) of the Code of Criminal Procedure, 1973 (‘CrPC’) filed by actor and politician Raj Babbar to set aside the order of the Sessions Court upholding his conviction under Sections 143, 332, 353 and 323 of the Penal Code, 1860 (‘IPC’), and to suspend the effect, execution, and operation of the Conviction Order, the Bench of Mohd. Faiz Alam Khan, J. stayed the conviction order during the pendency of his application citing the upcoming general elections as a reason for urgency.
The actor turned parliamentarian was convicted by the Trial Court under Sections 143, 332, 353 and 323 of the IPC for a maximum period of two years for alleged feud that occurred at an election polling station in Wazirganj, Uttar Pradesh. He then moved an application for suspension of sentence while also simultaneously moving an application for stay of his conviction. While the sentence was suspended by the Trial Court, the application 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 hearing.
This Bench cited a number of judgments to establish that no doubt some exceptional circumstances are required to be shown by the convict while approaching the Court for stay of his conviction, especially under circumstances which attract the bar under Section 8(3) of the Representation of the People Act, 1950 (‘RoPA’), it does not mean that something extraordinary is to be demonstrated by the convict. The Court said that it is sufficient, if it is shown that some important and material evidence was not considered by the Trial Court which may tilt the balance in favour of an accused and also that requisite care was not taken by the Trial Court at the stage of sentencing.
The Court viewed that the Trial Court should have considered the evidence adduced by the two witnesses in correct perspective, explaining that the two witnesses, who sustained injuries in the incident, had stated that they were not assaulted by Raj Babbar and in fact that he had rescued them and got the matter subsided. The Court said that surprisingly, the Trial Court convicted Raj Babbar under Section 143 of the IPC ignoring the evidence of the two injured witnesses that Raj Babbar had arrived after the arrival of other accused persons. The Court also added that while convicting him under Section 143 of the IPC, which formed only part and parcel of unlawful assembly, the Trial Court without framing any charge under Section 149 of the IPC convicted him for other substantive offences under Sections 323, 353 and 332 of the IPC as if he himself participated in the incident of assault without convicting him vicariously, with the help of Section 149 of the IPC.
The Court also opined that it was unfair to the convict that the Trial Court did not consider his political affiliation and sentenced him to an imprisonment of more than two years.The Bench , placing regard to the urgency shown on account of the upcoming elections, stayed/suspended the impugned Order as well as the conviction Order, during the pendency of this application.
The matter is listed on 01-05-2024 next.
[Raj Babbar v. State of UP, 2024 SCC OnLine All 932, Order Dated 29-03-2024]
Advocates who appeared in this case :
For the Appellant: Advocate Gaurav Mehrotra, Advocate Satendra Kumar (Singh), Advocate Abhishek Misra, Advocate Nadeem Murtaza, Advocate Abhinit Jaiswal, Advocate Wali Nawaz Khan
For the Respondent: Government Advocate Rajesh Kumar Singh
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