Liyakat Khan vs State of U.P. and Others

V.K. Shukla, J.—Present writ petition in question has been filed by petitioner questioning the validity of the order dated 21.12.2009 passed by Additional Commissioner (Food) Chitrakook Dham Division Banda proceedings to allow the appeal preferred on behalf of Mohd. Ishaque, fair price shop agent of the Gram Panchayat in question.

Brief background of the case is that petitioner claims that he has been elected as Pradhan of village Panchayat Chhanaihra Lalpur, Tehsil and District Banda in the by-election so held since year 2008. Petitioner claims that on account of irregularity of distribution of essential commodities by fair price agent, respondent No. 4, he alongwith BPL and Antodaya card holders moved complaint before S.D.M. Banda to conduct inquiry against fair price shop agent. Sub- Divisional Magistrate asked Naib Tehsildar, Banda to conduct inquiry and submit its report. Pursuant thereto Naib Tehsildar Banda submitted its report on 09.06.2009 before respondent No. 3 i.e. Sub-Divisional Magistrate. After the said report was submitted order of cancellation has been passed by Sub-Divisional Magistrate on 24.09.2009. Against the order dated 24.09.2009 passed by Licensing Authority appeal was preferred by respondent No. 4 and in the said proceedings petitioner filed impleadment application. Said application in question was rejected on 15.10.2009. Aggrieved against the same petitioner preferred Civil Misc. Writ Petition No. 57714 of 2009 before this Court and this Court on 05.11.2009 proceeded to dispose of aforesaid writ petition by passing following orders which is being quoted below:

The petitioner, who is the Gram Pradhan and a complainant also, is aggrieved by the order dated 15th October, 2009 passed by the Appellate Authority by which his application for impleadment as respondent in the appeal filed by respondent No. 4 against the cancellation of fair price shop license has been rejected with the observations that he can produce the documents through the State Counsel.

In view of the order that I propose to pass, it is not necessary to issue notice to respondent No. 4. Learned Standing Counsel states that it may not be necessary to file a counter affidavit.

It has been stated in the writ petition that the fair price shop dealer-respondent No. 4 was sentenced to undergo life imprisonment u/s 302 of the Indian Penal Code and even though this fact was brought to the notice of the Sub-Divisional Magistrate in the complaint filed by the petitioner, the Sub-Divisional Magistrate has not taken this into consideration and when the petitioner moved an application before the Appellate Authority for bringing on record this fact, the application has been rejected with the observation that the petitioner can file the documents through the State Counsel.

Learned Counsel for the petitioner has submitted that though the petitioner had supplied all the documents to the State Counsel but he did not file them or bring this fact to the notice of the Appellate Authority and an interim order was passed on 15th October, 2009. He, therefore, submits that he would be satisfied if the State Counsel files an application in the pending appeal to bring on record all these documents.

Learned Standing Counsel appearing for the respondents states that these are material facts and the State Counsel shall file an appropriate application in the appeal filed by respondent No. 4.

The petition is, accordingly, disposed of with a direction that the State Counsel shall file an appropriate application in the pending appeal on which order will be passed by the Appellate Authority after giving opportunity to respondent No. 4.

Thereafter petitioner claims to have moved application alongwith relevant documents and thereafter petitioner claims that said application has been rejected and thereafter appeal which has been preferred by Mohd. Ishque has been allowed. At this juncture present writ petition has been filed.

On presentation of present writ petition in question this Court has proceeded to pass following order which is being quoted below:

Learned Standing Counsel has accepted notice on behalf of respondent Nos. 1, 2 and 3. Issue notice to respondent No. 4.

Each one of respondents is granted six weeks'' time to file counter affidavit. Rejoinder affidavit may be filed within next two weeks.

List thereafter.

It has been contended on behalf of the petitioner that the appellate authority has grossly misdirected itself by ignoring the fact that respondent No. 4 is with W.P. No. 97 of 2010 a convict in Sessions Trial No. 420 of 1991, and till date said order of conviction dated 28.03.2005 has neither been reversed nor varied nor modified. Petitioner submits that once respondent No. 4 is convict, then under Clause 25 of the Control Order, 2004, by no stretch of imagination, his fair price shop licence was liable to be revived, rather in the event of incumbent being in jail, the fair price shop licence should remain suspended and in the event of conviction, it remains of no use. Petitioner has further contended that the same officer is well aware of the statutory provisions inasmuch as while deciding appeal No. 57/60 of 2008-09 filed by Ram Saran these facts have not been taken note of, and the appeal has been dismissed. In pith and substance the appellate authority has misdirected itself while deciding the appeal.

Prima facie the argument advanced appears to have some substance and requires adjudication by this Court, as such till the next date of listing operation of the impugned order dated 21.12.2009 passed by the Additional Commissioner (Food) Chitrakoot Division, Banda shall be kept in abeyance.

Counter affidavit has been filed on behalf of respondent Nos. 3 and 4 to which rejoinder affidavit has also been filed.

Stand has been sought to be taken by private respondent that petitioner has no locus standi to prefer writ petition as Pradhan and same is not maintainable in view of provisions as contained in Para 123, 124, 125, 126, 127, 128, 129, 130 and 131 of the Gram Sabha Manual read with Section 127-B of U.P. Zamindari Abolition and Land Reforms Act. Coupled with this it has also been stated that petitioner is not at all party to the proceedings rather he is witness of the complaint, as such writ petition is not at all competent and maintainable. It has also been sought to be stated that the sentence has also been suspended by this Court in Criminal Appeal No. 626 of 1995 keeping in mind that said shop was the sole source of livelihood of the family of respondent No. 4, in such as situation and in this background it has been requested that writ petition is liable to be dismissed.

In the rejoinder affidavit emphasis has been placed that respondent No. 4 stood disqualified to get the fair price shop agency in his favour as such by no stretch of imagination respondent No. 4 could have been permitted to function as fair price shop agent.

After pleadings mentioned above have been exchanged present writ petition has been taken U.P. for final hearing and disposal with the consent of the parties.

Sri O.P. Chaubey, learned Counsel for the petitioner contended with vehemence that once respondent No. 4 is an accused in a murder case and has been convicted by competent criminal court then effect of the said conviction is that respondent No. 4 is disqualified to act as fair price shop agent, in such a situation and in this background once action of the authority was in violation and breach of policy formulated then petitioner has every locus to question the validity of the same, and respondent No. 4 could not be permitted to function as fair price shop agent, as such in such a situation and in this background order passed under appeal is liable to be quashed.

Countering the said submission, learned Standing Counsel as well as Sri C.B. Yadav, Senior Advocate assisted by Sri Lal Chandra Mishra, Advocate on the other hand contended that petitioner is elected Pradhan and has got no locus to question the validity of the order allowing the appeal preferred on behalf of respondent No. 4 and further said conviction is of no consequence in the present case as this Court has already stayed the operation of the sentence, in such a situation and in this background writ petition as it has been framed and drawn is liable to be dismissed.

In the present case accepted position as per own averment of the petitioner is that he alongwith BPL and Antodaya card holders moved complaint before S.D.M. Banda and on his complaint earlier order of cancellation was passed and thereafter appeal against the same has been preferred and said appeal in question has been allowed.

Division Bench of this Court in the case of Amin Khan Vs. State of U.P. and Nirmala Verma, has taken the view that an incumbent on whose complaint inquiry has been initiated, at the best can be a witness in the said inquiry and none of his/her personal and statutory right are effected.

Another Division Bench of Lucknow Bench of this Court, in the case of Dharm Raj v. State of U.P. and Ors. Writ Petition No. 6409 (MB) of 2009 decided on 15.07.2009 has held that complainant has got no right to maintain writ petition as he/she are not ''person aggrieved'' and are in fact ''person annoyed'', and none of their legal right are infringed.

In view of two Division Benches of this Court petitioner''s status being of a complainant and none of his personal and statutory rights being effected as such petitioner has no locus standi to maintain writ petition.

In the present case much emphasis has been led on behalf of petitioner on the fact that he has been espousing cause for public good and here respondent No. 4 was an accused in a murder case and as such he was disqualified, in such a situation by no stretch of imagination he could have been permitted to function as an agent. Reliance has been placed on the judgment of this Court in the case of Mithai Lal Dubey v. District Magistrate, Sant Ravi Das Nagar reported in 2000 UPLBEC 2619.

It is true that under the relevant Government Order at the point of time of making selection and appointment of an agent it has to kept in mind that an incumbent should not be charged of a criminal offence and he should not be convicted in any criminal offence. Petitioner has also tried to submit that as per the terms and condition of agreement, on conviction being recorded said agency would automatically get cancelled. This is accepted position that respondent No. 4 has been arrayed as an accused in a murder case and has been convicted by competent criminal court vide order dated 28.03.1995 and against the said order respondent No. 4 preferred Criminal Appeal No. 626 of 1995 and was released on bail by this Court on 26.04.1995. Respondent No. 4 during all these period after being released on bail, continued to carry business of fair price shop and when petitioner was elected in the year 2008 after twelve years he alongwith the others made complaint and thereafter order of cancellation was passed on 24.09.2009. Before said order of cancellation was passed an application was moved in Criminal Appeal No. 626 of 1995 after serving the copy of application on Additional Government Advocate on 31.08.2009 and therein prayer was made that fair price shop is the only source of livelihood of the appellant and his family members and would be adversely effected as such appropriate orders be passed. This Court on 28.10.2009 passed following orders which is being quoted below:

Heard Sri Rajul Bhargava, learned Advocate who appeared to press the application for suspending the sentence so awarded by the judgment which is under appeal, and learned A.G.A.

Submission is that appellant No. 5 Ishaque was granted bail along with five co-appellants in the year 1995 by order dated 26.4.1995 and he never misused the grant of liberty by this Court.

Submission is that appellant No. 5 is licensee of a fair price shop and is having the shop/agreement in his favour since 1991 which was renewed from time to time. It is then submitted that in the year 2004 an amendment came from which now there is an apprehension that in view of the specific Clause inserted therein, if the licensee is in jail or is convicted for an offence, then the license may be be placed under suspension/cancelled.

Be as it may, submission is that the main charge for which the appellant No. 5 is convicted, he has already been granted bail, if this Court directs the sentence under suspension then he may be able to get the advantage in respect to the engagement which is under threat, in view of the Government Order.

Learned A.G.A. opposed the grant of the prayer so made in the application.

There is no dispute about the fact that as on today the appellant is convicted for an offence u/s 302 IPC but there is also no dispute about the fact that the appellant No. 5 was granted bail by the order of this Court dated 26.4.1995 and although a copy of this application was served on learned A.G.A. on 31.8.2009 but there is no information to this Court about misuse of liberty so given.

Appellant brought on record along with affidavit a copy of agreement from which it is clear that still the appellant happens/happened to be the fair price shop dealer. In the affidavit it is clearly stated that he still hold the license.

It has also been stated in para 10 of the affidavit that the fair price shop is the only source of livelihood of the appellant and his family members.

Keeping in mind the aforesaid facts and the fact that the fair price shop license is the only source of livelihood of the appellant and his family members, this Court is satisfied that the appellant is to be given the relief so prayed in this application.

Accordingly this application is allowed. This Court directs that the sentence so awarded against the appellant No. 5 shall remain under suspension during the pendency of the appeal.

The application is disposed of accordingly.

Tenor of the order passed by this Court clearly reflects that keeping in mind the facts that the fair price shop license is the only source of livelihood of respondent No. 4 and his family members, this Court after being satisfied proceeded to stay the sentence.

Sri O.P. Chaubey, learned Counsel for the petitioner contended with vehemence that effect of said conviction is not wiped out and disqualification stands, in view of the judgement of Hon''ble Apex Court in the case of B.R. Kapur v. State of T.N and Anr. reported in : 2001 (7) SCC 231. Relevant paragraphs 34 and 40 are being looked into:

It is true that the order of the High Court at Madras on the application of the second respondent states: "Pending criminal appeals the sentence of imprisonment alone is suspended and the petitioners shall be released on bail...", but this has to be read in the context of Section 389 under which the power was exercised. u/s 389 an appellate court may order that "the execution of the sentence or order appealed against be suspended....: It is not within the power of the appellate court to suspend the sentence; it can only suspend the execution of the sentence pending the disposal of appeal. The suspension of the execution of the sentence does not alter or affect the fact that the offender has been convicted of a grave offence and has attracted the sentence of imprisonment of not less than two years. The suspension of the execution of the sentences, therefore, does not remove the disqualification against the second respondent. The suspension of the sentence, as the Madras High Court erroneously called it, was in fact only the suspension of the execution of the sentences pending the disposal of the appeals filed by the second respondent. The fact that she secured the suspension of the execution of the sentences against her did not alter or affect the convictions and the sentences imposed on her and she remained disqualified from seeking legislative office u/s 8(3).

In much the same vein, it was submitted that the presumption of innocence continued until the final judgment affirming the conviction and sentence was passed and, therefore, no disqualification operated as of now against the second respondent. Before we advert to the four judgments relied upon in support of this submission, let us clear the air. When a lower court convicts an accused and sentences him, the presumption that the accused is innocent comes to an end. The conviction operates that the accused has to undergo the sentence. The execution of the sentence can be stayed by an appellate court and the accused released on bail. In many cases, the accused is released on bail so that the appeal is not rendered infructuous, at least in part, because the accused has already undergone imprisonment. If the appeal of the accused succeeds the conviction is wiped out as cleanly as if it had never existed and the sentence is set aside. A successful appeal means that the stigma of the offence is altogether erased. But that is not to say that the presumption of innocence continues after the conviction by the trial court. That conviction and the sentence it carries operate against the accused in all their rigour until set aside in appeal, and a disqualification that attaches to the conviction and sentence applies as well.

From the side of contesting respondent it has been stated that once conscious order has been passed taking into account the specific circumstances that are likely to fall upon conviction the person convicted can obtain an order of stay of conviction and reliance for said purpose is based on the judgment of Hon''ble Apex Court in the case of Ravi Kant S. Patil v. Sarvabhouma S. Bagali reported in 2007 (1) SCC 673. Relevant extract of the aforesaid judgment is being quoted below:

This Court, however, clarified that 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; and that unless the attention of the court to the specific consequences that are likely to fall upon conviction, the person convicted cannot obtain an order of stay of conviction. In fact, if such specific consequences are not brought to its notice, the court cannot be expected to grant stay of conviction or assign reasons relevant for staying the conviction itself, instead of merely suspending the execution of the sentence. In that case, it was found on facts that the appellant therein had not specified the disqualification he was likely to incur u/s 267 of the Companies Act, if his conviction was not stayed. Therefore, this Court refused to infer that the High Court had applied its mind to this specific aspect of the matter and had thereafter granted stay of conviction or the operation of the impugned judgment. Consequently, the order of stay was not construed as a stay of conviction.

(15) It deserves to be clarified 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. An order of stay, of course, does not render the conviction non-existent, but only non-operative. Be that as it may. Insofar as the present case is concerned, an application was filed specifically seeking stay of the order of conviction specifying that consequences if conviction was not stayed, that is, the appellant would incur disqualification to contest the election. The High Court after considering the special reason, granted the order staying the conviction. As the conviction itself is stayed in contrast to a stay of execution of the sentence, it is not possible to accept the contention of the respondent that the disqualification arising out of conviction continues to operate even after stay of conviction.

(16) We may now refer to the several other decisions of this Court, cited by the parties.

(16.1) The decision in B.R. Kapur v. State of Tamil Nadu [2001] 7 SCC 231, will have no application as it was not a case of stay of conviction. In that case, only an order of suspension of sentence was made under Sectionc 389 of the Code. In fact, the petitions seeking stay of the operation of the judgment in the criminal cases were dismissed by the High Court.

(16.2.) In State of Tamil Nadu v. A. Jaganathan [1996] 5 SCC 329, the State challenged the order of the High Court which had granted suspension of the conviction as also the sentence, relying on Rama Narang (supra). This Court held that the principle laid down in Ram Narang (supra) was that conviction and sentence can both be suspended only if non-grant of suspension of conviction would result in damage which could not be undone if ultimately the appeal/revision was allowed. On facts, it was found that even if stay of conviction was not granted, no prejudice would be caused to the convicted person, having regard to the fact that when the revisions against the conviction and sentences were ultimately allowed, the damage, if any, caused to the respondents therein with regard to payment of stipends etc. could well be revived and made good to the them. This Court noted that if such trifling matters involving slight disadvantage to the convicted person were to be taken into consideration, every conviction would have to be suspended pending appeal or revision. It was further noted that the High Court did not consider at all the moral conduct of the respondents inasmuch as the respondent Jaganathan who was a Police Inspector had been convicted under Sections 392, 218 and 466 IPC, while the other respondents who were also public servants had been convicted under the provision of Prevention of Corruption Act. Under those circumstances, the discretion exercised by the High Court in suspending the conviction was reversed.

(16.3.) In K.C. Sareen v. CBI, Chandigarh [2001] 6 SCC 584, it was held that though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389(1) of the Code, its exercise should be limited to very exceptional cases. It was further held that merely because the convicted person files an appeal to challenge his conviction, the court should not suspend the operation of the conviction and the court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance. The Bench also noted that the evil of corruption has reached a monstrous dimension. While declining the prayer of the appellant for grant of an order of stay of conviction, the Bench observed that when conviction is on a corruption charge against a public servant, the appellate court should not suspend the order of conviction during the pendency of the appeal, even if the sentence of imprisonment is suspended. The Bench further observed that it would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision. These observations would equally apply when a prayer for stay of order of conviction is made so as to remove the disability to contest an election except, as already noted, in a very exceptional and rare case.

(16.4.) Lastly, reference may also be made to the decision of this Court in State of Maharashtra v. Gajanan and Anr. [2003] 12 SCC 432. In the said case, relying on the case of K.C.Sareen (supra), it was reiterated that only in exceptional cases, the court should exercise the power of stay of conviction. Since the High Court in the said case had not pointed out any exceptional fact or looked into the ramification of keeping such conviction in abeyance, the order of the High Court staying the conviction was set aside. In the cited case of Union of India v. Atar Singh [2003] 12 SCC 434, it was noted that the High Court had mechanically passed the order by suspending the conviction and the discretion ought not to have been exercised by the High Court by passing such an order suspending the conviction.

(16.5.) All these decisions, while recognising the power to stay conviction, have 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.

(17) Reverting to the present case, we are not called upon to decide the correctness of the order of stay of conviction dated 26th March, 2004. All that requires to be noticed is that on the dates of nomination and election, in view of the said order staying conviction, the appellant was not disqualified. The question whether subsequently the conviction was set aside in appeal or whether the matter is in further challenge before this Court is of no relevance for deciding the point in issue.

On the parameter as set out in the present case it is true that order of cancellation has already been passed on 24.09.2009 but before passing of the said order application had already been moved for stay of execution of sentence clearly mentioning therein that its direct effect would be on the running of the fair price shop and this Court after taking into account that said shop is the only source of livelihood of respondent No. 4 and criminal appeal was pending, in the facts of the case proceeded to pass order staying the sentence. Once said order has been passed keeping in mind specific purpose to avoid specific circumstances then in such a situation after appeal has been allowed by Appellate forum after recording finding that there was no illegality in distribution whatsoever and entire action was motivated then said criminal case could not be made foundation and basis for non-suiting the agency of respondent No. 4 specially when order suspending the sentence clearly proceeds to mention that necessary consequence would be cancellation of fair price shop. Staying order of sentence it is true is in contrast to the order staying of conviction but here tenor of the order passed by this Court in Criminal Appeal was that said disqualification should not come in the way of fair price shop licensee, which was his sole source of livelihood and same has to be construed as stay of conviction and sentence both. Order of Licensing Authority was based on illegalities committed in distribution, and not at all based upon order of conviction being passed and said charges in Appeal have not at all been approved of, and the Appellate Forum has not accepted this criminal case, keeping in view the order passed by Division Bench of this Court in Criminal Appeal on 28.10.2009. Once on merit precise order has been passed by Division Bench of this Court suspending the sentence keeping in mind that immediate effect would be on the livelihood of respondent No. 4 and his family then in such a situation in fact of the case said disqualification cannot be taken into account in view of the specific order passed by this Court and judicial discipline warrants to ensure that the order passed by this Court, by Division Bench is not at all by-passed. Here authorities have not at all failed to perform and discharge their duties in accordance with law, neither there is any extraneous considerations in passing the order. Petitioner was well aware of the passing of the order of Division Bench of this Court, as it was referred to in the order passed in Appeal, but said order was deliberately withheld, as neither it was referred to nor copy of the same was appended with petition. Petitioner has not approached this Court with clean hands, and his action is not in public interest rather a motivated one, as mentioned by Appellate forum. Judgement cited by petitioner, as such will not at all come to the rescue of petitioner.

Consequently, in the present case there is no occasion to interfere with the order impugned. Writ petition is accordingly dismissed.