Rajendra Bharti v. The State NCT of Delhi

15. Appellant is an elected Member of Legislative Assembly from Datia Constituency of Madhya Pradesh.

16. A bye-election to fill up the vacancies for three Assembly Constituencies, has been notified by Election Commission of India.

17. Datia is, one of those, and is also to undergo poll.

18. Such vacancy for Datia has fallen on account of disqualification[6] of the appellant, consequent upon the aforesaid conviction and order on sentence. Order of disqualification issued by Vidhan Sabha Sachivalaya is of 02.04.2026.

19. The Gazette Notification for holding bye-election has been issued on 06.07.2026. The last date for nomination is 13.07.2026 and election is scheduled for 30.07.2026.

SUBMISSIONS OF APPELLANT

20. Mr. P. Chidambaram, learned Senior Counsel for the appellant submits that the appellant was an elected Member of Legislative Assembly of Datia, M.P. Datia Constituency and in view of impugned orders, he stands disqualified from the Membership of Legislative Assembly as per Article 191(1)(e) of Constitution of India read with Section 8 of the Representation of People Act, 1951. He submits that appeal raises arguable and critical questions of facts and law, as the findings returned by the learned Trial Court are not sustainable at all. Impugned judgment being flawed, appellant would suffer irreparable injury if conviction is not stayed.

21. He submits that law has evolved in this regard and appellate courts have ample power to suspend not only the sentence but the order of conviction also. The crucial determining and decisive factors, for the abovesaid purpose, would include factual aspects of given case, gravity of the alleged offences, criminal antecedents of any such individual and wider social impact. Reliance is placed upon Afjal Ansari vs. State of U.P.7, Abbas Ansari vs. State of U.P.8, Dilip Ray vs. Central Bureau of Investigation,[9] Mohammad Azam Khan vs. Election Commission of India & Ors10. and Rajesh Shantilal Adani and Another vs. State of Maharashtra and Another11.

22. Mr. Chidambaram submits that in the case in hand, all such conditions

2024 SCC OnLine Del 2522 Writ Petition (Civil) No. 980/2022 2025 SCC OnLine Bom 610 co-exist, which necessitates immediate stay on conviction so as to ensure that there is no irreversible damage. He asserts that though final arguments would be advanced at a later stage, a cursory glance over the record and impugned judgment would make it evident that the investigation was tainted and motivated and there is no legally admissible evidence on record. He states that conviction is based on statement of co-accused, which was, even otherwise, subsequently retracted. Relying on Rajesh Shantilal Adani (supra), he contends that since substantive charges could not be proved, there was no occasion for the learned Trial Court to have held him guilty for the same very offences, even if these were to be invoked in conjunction with offence of conspiracy.

RIVAL STAND

23. All such contentions have been refuted.

24. Mr. Mohit Mathur, learned Senior Counsel for respondent No. 2 (complainant Bank) submits that there is no reason, much less a compelling one to stay the order of conviction. He argues that appellant, who besides being a sitting MLA was also Chairman of the complainant Bank, misused his position and caused wrongful loss to the Bank and, consequently, wrongful gain to a Trust, owned by his family. Thus, by the act in question, he, unmistakably, tried to enrich himself and his family.

25. He submits that co-convict had, voluntarily, divulged all details on affidavit and since thereafter he retracted, the Bank was left with no option but to move an application under Section 319 Cr.P.C. and it was thereupon that not only he was summoned as accused but was even held guilty. He submits that the aspect of criminal conspiracy, and forging the record and causing wrongful loss to the bank in consequence to such conspiracy is writ large and was duly proved.

26. While referring to Trial Court Record and impugned judgment, he contends that the appellant has made a futile attempt to trivialize the entire issue. He states that the learned Trial Court found him guilty for committing criminal conspiracy for serious offences like cheating and forgery which are evidently offences involving moral turpitude. Relying on The State Bank of India & Others vs. P. Soupramaniane12, he contends that to assess whether the offence involves moral turpitude or not, the Court has to see whether the act in question could, inter alia, shock the moral conscience of the society in general or not. The appellant was at the helm of the affairs of the Bank and it was only at his instructions and the influence exerted by him that the bank records were tinkered and forged. The beans had earlier been spilled by his co-convict Mr. Parjapati, who, categorically, divulged everything on affidavit against him and merely because, subsequently, he retracted, his earlier statement would not get effaced. The contention that appellant could not have been held guilty for committing conspiracy without being held guilty for the substantive offences, is, according to Mr. Mathur, nothing but a fallacious one. He submits that learned Trial Court was fully justified in relying upon Sheila Seastian vs. R. Jawaharaj13 as in that case also, though forgery had been committed in terms of conspiracy, there was nothing to indicate that the concerned accused was himself responsible for the same so as to make him “maker” of such document. Relying on Bimbadhar Pradhan vs. State of Orissa14 and State of Madhya Pradesh vs. Sheetla Sahai and Civil Appeal No. 7011/2009

Ors.15, he asserts that criminal conspiracy is a standalone and independent offence and, therefore, there is no illegality in the impugned order. Referring to Antony Raju vs. State of Kerala & Anr.16, it is stated that application of appellant needs to be dismissed, outrightly, as he has failed to indicate any palpable, manifest and apparent error in the impugned judgment.

27. Lastly, Mr. Mathur also submits that the process of mid-term poll has already been initiated, which now cannot be reversed.

28. Mr. Raj Kumar, learned Addl. P.P. for State/R-1 has also echoed the same and his arguments are also same and similar.

ANALYSIS AND DISCUSSION

29. Undeniably, in a given situation, order of conviction can be stayed but at the same time, such use of power has to be under exceptional circumstances.

30. Instead of rule, it is more of an exception.

31. Undoubtedly, Section 389 Cr.P.C. provides a statutory remedy and the Court has ample power to suspend sentence. However, with the passage of time, the principle of suspension of conviction has also evolved. Any sentence, as would be evident, flows from the order of conviction only. If the order on sentence is stayed, such order becomes non-operational, albeit, temporarily, thereby entitling any such accused to come out of the jail, if inside. Whereas, exercise of power to direct suspension of order of conviction is on a higher pedestal. If order of conviction is stayed, naturally, sentence would get stayed, automatically. In Rama Narang vs. Ramesh Crl. Appeal No. 1417/2009 2026 SCC OnLine Ker 3573 (Upheld by the Hon’ble Supreme Court on 27.04.2026) Narang and Others17, three Judges Bench of the Supreme Court recognized the power vested with the Appellate Court to suspend even an order of conviction by observing that there was no reason to give a narrow interpretation to Section 389 Cr.P.C. and to not extend it to an order of conviction in a fit case. Thus, the scope of Section 389 Cr.P.C. has been enlarged and widened with the aforesaid evolution of law but at the same time, it is the duty of the Court to maintain due caution while exercising such jurisdiction which is extraordinary in nature.

32. Obviously, once any order of conviction, which incorporates the reasons for holding someone guilty, is stayed, any disqualification attached with such guilt is also bound to be stayed and, therefore, exercise of such power needs to be done with utmost circumspection.

33. Reference be made to K.C. Sareen v. CBI18, Chandigarh wherein it has been observed as under: -

34. In Ravikant S. Patil v. Sarvabhouma S. Bagali19 while recognising the power to stay conviction, Hon’ble Supreme Court has cautioned and clarified that such power should be exercised only in exceptional circumstances where failure to stay the conviction would lead to injustice and irreversible consequences.

35. Afjal Ansari vs. State of U.P. (supra) sums up the factors relevant for consideration of any such request. The majority view goes on to hold that the very notion of irreversible consequences is centered on factors, including the individual's criminal antecedents, the gravity of the offence with emphasis on moral turpitude, and its wider social impact, while simultaneously considering the facts and circumstances of the case. It observed that societal interest was an equally important factor which ought to be zealously protected and preserved by the Courts and it was, thus, held that it would be appropriate for the Courts to balance the interests of protecting the integrity of the electoral process on one hand while also ensuring that the constituents are not bereft of their rights to be represented, merely based on a threshold opinion which is open to further judicial scrutiny.

36. In Antony Raju (supra), the conviction was for offences under Sections 120-B, 420, 201, 193, 217 r/w Section 34 IPC and when an appeal 2006 SCC OnLine SC 1214 was preferred before the Sessions Court, the concerned accused prayed for suspension of conviction. Such application was dismissed on 17.02.2026 which was impugned before Kerala High Court. Petitioner therein also was a sitting Member of Legislative Assembly and while arguing that there was dearth of evidence in the matter and if conviction was not stayed, he would not get opportunity to contest the election due to interdiction contained in Section 8 of Representation of Peoples Act, 1951. It was also agitated that denial of opportunity would visit him with irreversible consequences and hardship. Such argument was countered by claiming that there was sufficient material to uphold the conviction and that right to contest election was not, even otherwise, a fundamental right and, therefore, suspension was not warranted, unless the impugned judgment suffered from a perceivable serious infirmity. Hon’ble Kerala High Court, eventually, did not find any serious infirmity and illegality in the impugned judgment and observed that when it comes to suspension/stay of conviction, in the context of interdiction under Section 8 of Representation of Peoples Act, 1951, Courts of law should be slow and doubly cautious in ensuring that such suspension is granted only in benefiting cases since it, virtually, overturns a statutory mandate. Relevant observations read as under: - “........

11. Now, this Court will look into the special requirements of suspension of conviction. Relying on Rama Narang (supra), the Supreme Court held in A. Jaganathan (supra), that conviction can be suspended only if, nongrant of such relief would result in damage which could not be undone, if the appeal is ultimately allowed. Trifling matters, involving slight disadvantage to the convicted person, cannot be recognised for the purpose of suspension of conviction. In K.C. Sareen (supra), it was held that the power to suspend the conviction, traceable to Section 389 CrPC, should be exercised in very exceptional cases. The Court has to look into all aspects, including the ramification of keeping such conviction in abeyance. K.C. Sareen (supra) ultimately held that, when conviction is on corruption charges against a public servant, the Order of conviction cannot be suspended, pending Appeal. Gajanan (supra) restated that suspension of conviction can only be in exceptional cases. In Ravikanth S. Patil (supra), the Supreme Court summarized the legal position and cautioned that the power has to be exercised only in exceptional circumstances, where failure to stay the conviction would lead to injustice and irreversible consequences. In Balakrishna Duttatrya Kumbhar (supra), the Supreme Court held that the applicant must satisfy the Court the evil which is likely to befall, if the conviction is not suspended. In Afjal Ansari (supra), a three Judges Bench of the Supreme Court was divided in their opinion. Per majority, it was held that the peculiar facts of each case will be the primary factor to be looked into. The likelihood of injustice or irreversible consequences centered on factors including the criminal antecedents, the gravity of the offence, its wider social impact, etc. were also taken stock of. In that case, the Supreme Court undertook a prima facie analysis of the merits of the judgment of the trial court, to hold that there is no cogent evidence to establish that the appellant therein was indulging in antisocial activities and crimes. Absence of corroborative evidence that the appellant was responsible for influencing witnesses, etc. was also taken into consideration. The Supreme Court went on to hold that the conviction, if allowed to operate, would lead to irreparable damage, which cannot be compensated in any monetary terms or otherwise, on the event of his acquittal later. That, by itself, carves out an exceptional situation, is the finding. The specific issue of the applicant's right to contest in the general election is seen considered in paragraph No. 17 of the judgment. The effective disqualification, which may go up to a period of ten years, was taken stock of as a relevant criteria falling under the potential ramification to suspend the conviction. The fact that, unless the conviction is stayed, the appellant therein would face disqualification in the teeth of Section 8 of the Representation of the People Act was taken stock of. Ultimately, the Supreme Court, per majority judgment held that since the appeal raises significant legal and factual issues, the appellant's future cannot be left hanging in the balance solely due to the conviction. The conviction was suspended and the trial was directed to be expedited.

12. Having referred to the broad parameters of legal consideration for suspension of conviction as propounded in the above dicta, this Court will now address the specific issues involved in this case.

13. Although several grounds have been canvassed to attack the judgment of conviction, it is trite that this Court cannot re-appreciate the evidence at this stage. As held in Rama Narang (supra), Sidhartha Vashisht (supra) and Omprakash Sahni (supra), what could be looked into at this stage is a palpable, manifest and apparent error in the judgment, so gross on the face of the record, which, in turn, may render the judgment vulnerable for interference when the criminal appeal is finally heard. Even the above exercise can only be within the parameters of ascertaining whether the petitioner/accused has a fair chance of acquittal ultimately. Therefore, the following two major aspects espoused by the learned Senior Counsel are taken up for consideration, solely to ascertain whether the judgment suffers from a manifest illegality, capable of casting a cloud on its sustainability...........................

21. Now, coming to the irreversible consequence, specifically espoused for the purpose of suspension/stay of conviction, it requires to be noticed that a recent judgment of Supreme Court in Afjal Ansari (supra) recognised to a considerable extent - that depriving the right of the accused to represent his constituency; the right of the constituency of its legitimate representation in the legislature; and the embargo on the accused to contest for future elections constitute irreversible consequences. However, the first two situations hardly arises in the instant case, since on facts, the period of the elected representatives had almost expired and a fresh election is at the doorstep. Therefore, there arises no serious question of the petitioner/A[2] being deprived of his right to represent the constituency, or for that matter, the constituency being deprived of its representation. What is more significant to be considered is the interdiction to contest future elections as per Section 8(3) of the R.P. Act, 1951.

22. Here, a distinction is liable to be drawn as between consequences which follows as a result of a statutory mandate; and other consequences. In the case of the former, the consequence is the very result created by the statute makers, after due deliberation, in accord with the due process; and hence it is doubtful, whether such a consequence can be propounded as constituting sufficient cause for suspension of conviction under Section 389 CrPC Secondly, this Court may have to observe that a statutory mandate in terms of Section 8(3) of the R.P. Act, has to be respected and cannot be overturned by judicial interference, except to the limited extent permissible by law and that too, for weighty and lofty reasons. One cannot loose sight of the fact that the interdictory mandate under Section 8(3) of the R.P. Act carries a definite purpose of keeping aloof from public life, those persons whose credibility has been stained and tainted by a conviction for specified offences or a sentence for a period more than two years. To ensure purity of persons dabbling in public and political affairs is the enviable object sought to be protected. The interpretation, for the purpose of suspension of conviction, should necessarily sync with the above laudable object. When the law is settled, that suspension/stay of conviction, can only be in exceptional circumstances - as held in a catena of decisions already referred above - I am of the opinion that, when it comes to a suspension/stay of conviction, in the context of the interdiction under Section 8(3) of the R.P. Act, Courts of law should be slow and doubly cautious in ensuring that such suspension/stay is granted only in befitting cases, since it virtually overturns a statutory mandate.

23. Here, this Court also has to take stock of the legal position that the initial presumption of innocence in favour of an accused is no longer available, once he/she is convicted by a competent criminal court [see in this regard Sidhartha Vashisht (supra) - quoted with approval in a recent judgment of the Supreme Court in Rajendra Sadashiv Nikalje (supra)]. There cannot be any quarrel that a person convicted of an offence cannot enjoy and exercise all the civil rights of an ordinary citizen. Necessary fetters in terms of law is an inevitable consequence of conviction.

24. Having held so, I am of the definite opinion that a “very exceptional circumstance” - as consistently coined in Ravikant S. Patil (supra), Gajanan (supra), K.C. Sareen (supra) and Duttatrya Kumbhar (supra) should necessarily be borne out from the judgment impugned itself, that is to say, a palpable perversity or patent unreasonableness writ large on the face of the impugned judgment. The following excerpts from Omprakash Sahni (supra) is apposite in this regard, though held in the context of suspension of sentence: “33..... However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very apparent or gross on the face of the record, on the basis of which, the court can arrive at a prima facie satisfaction that the conviction may not be sustainable......” Therefore, it is neither in the interest of law, nor in public interest to stay/suspend a conviction merely for the reason that the accused is an M.L.A. or an M.P. and that his future chances of contesting election is in jeopardy. Such jeopardy is nothing but a statutory legal consequence, emanating from the judgment of conviction, duly entered into by a competent court, in accord with the due process of law. Therefore, in the absence of a serious infirmity or a fundamental flaw, probabilising preponderently a possible interference with the judgment, ultimately leading to the acquittal of the accused, the judgment of conviction is not liable to be stayed/suspended. The existence of such a manifest and palpable error, gross on the face of the record, in the instant facts, has already been negated.”

37. Undoubtedly, if the conviction is not stayed, bye-election for Datia Constituency shall be held, as per the notified schedule.

38. Question is whether such factor, in itself, is compelling enough to suspend the order on conviction.

39. The answer has to be in negative.

40. Reason is obvious.

41. Hardship has to be individual-centric i.e. specific to an individual.

42. A general and omnibus fallout cannot be taken as a case of individual hardship.

43. Once any such elected representative is held guilty, he automatically, in view of the legislative mandate, incurs disqualification, which, in turn, can result in bye-election if the remainder period is substantial one. Thus, any elected representative, in such a situation, would come up with a similar prayer and, therefore, aspect related to irreversible consequence would, generally speaking, be inherent. Viewed thus, the hardship is not classic to an individual, but a universal and omnibus one, touching the entire class. Such hardship is, thus, not for the appellant alone and would be true for all others who held the seat and on pronouncement of guilt stand disqualified and, therefore, in such a situation, the factual matrix of any given case becomes the most dominant factor.

44. With the able assistance of learned counsel for both the sides, this Court has gone through the relevant record and impugned judgment. The same has been seen in the backdrop of rival contentions.

45. Indubitably, at the moment, there is no in-depth inquiry as comprehensive arguments on the main appeal are yet to be advanced, but a humble scrutiny does not reveal any palpable or manifest error in the impugned judgment, suggesting findings of guilt to be absolutely unsustainable or unconscionable. The Trial Court Record has been received which also contains the documents said to have been forged. What emerges is that FD created for tenure of three years, came to be altered in stages, first to ten years, and in due course to fifteen. It is the prosecution’s case that the Trust, at the instance of the appellant and in conspiracy with his co-accused, in a very systematic and calculated manner, continued to draw interest wrongfully, thereby benefiting the appellant and his mother. The interest @13.5% was drawn, year after year, for a stretch of thirteen years, from 1999 to 2011, long after the FD’s original three-year term had come to an end. Reliance has also been placed on the fact that co-convict Prajapati, who is said to have physically carried out these alterations, had himself, in a departmental reply and a notarized affidavit given years before he was made an accused, admitted to making the alterations and stated that he did so at the instance of, and for the benefit of, his co-accused i.e. appellant herein and his mother Savitri (since deceased). Such co-accused-Prajapati has been held guilty for substantive offences under Sections 467, 468 r/w Section 120B IPC and also for Section 120B r/w Sections 420/467/468/471 IPC.

46. Thus, factual matrix, when analyzed on surface level, does not persuade this Court to stay the order of conviction. No manifest illegality or perversity, gross on the face of the record, so as to call for any interference, at least, at this juncture.

47. Of course, the appellant does not have any prior involvement but the facts presented before this Court do indicate that he abused his position and failed to repose the faith that the people had in him. He was holding dual responsibility. Besides being an elected representative, he was also Chairman of the Bank in question. Despite the same, with apparent vested interest, he influenced the bank officials so that his own family Trust is benefited. He has been held guilty for committing conspiracy related to serious offences of forgery and cheating. These cannot be disregarded or sidelined while taking prima facie view of the matter as these offences have clear semblance to those concerning moral turpitude. Staying the conviction, in the present factual scenario, would rather frustrate the very purpose, spirit and objective behind incorporation of Section 8 of Representation of Peoples Act, 1951.

48. Viewed thus, the present application seeking suspension of conviction is, hereby, dismissed.

49. Needless to emphasize, observations appearing hereinabove are tentative in nature and shall not prejudice the mind of this Court while hearing final arguments in the main appeal.

JUDGE JULY 10, 2026/dr/js/sa