Dipak Lihati Patel Vs the State of Maharashtra

cr appa 1009-10.doc

RMA

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO. 1009 OF 2010 IN

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CRIMINAL APPEAL NO. 1292 OF 2003

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Dipak Patel

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.. Applicant

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Vs

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The Union Territory of Dadra & Nagar
Haveli

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.. Respondent

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Mr. B.D. Joshi for the Applicant

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Mr. D.A. Nalawade, for Respondent No. 1

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Ms. A.A. Mane, APP for the State

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CORAM : SMT. V.K. TAHILRAMANI, J

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DATE : 5th OCTOBER, 2010.

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P.C.:

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1. Leave to amend. Amendment be carried out forthwith.

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2.Heard learned counsel for the applicant-original
accused no. 2, learned counsel for respondent no. 1-Union
Territory of Dadra and Nagar Haveli and learned APP for the
State.

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3.By judgment and order dated 31.07.2003 passed in
Sessions Case No. 23 of 1999, the learned Sessions Judge,
Dadra and Nagar Haveli, Silvassa convicted the applicant-

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1

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cr appa 1009-10.doc

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original accused no. 2 under Sections 143,147,148 and 325
read with Section 149 of IPC. For the offence under Section
143, he was sentenced to imprisonment for 3 months, for the
offences under Sections 147 & 148, he was sentenced to
imprisonment for six months and for the offence under Section
325 read with 149, he was sentenced to imprisonment for two
years. The learned Sessions Judge directed that all the
substantive sentences of imprisonment shall run concurrently.
The appeal preferred by the applicant against the said
judgment and order is pending before this Court. The
applicant has already been granted bail by this Court.
Though his sentence has been suspended, by this application,
the applicant has prayed for suspension of conviction.

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4.The case of the applicant is that he wants to contest
for District Panchayat Election. As per the programme set
out by the Election Commissioner, the elections are to take
place on 24th October, 2010 and the last date for submitting
nomination forms is 6th October 2010 and the date for
scrutiny of nomination forms is 7th October 2010, hence the
urgency. A copy of the said election programme is annexed by
the learned counsel for the applicant.

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5.Learned counsel for the applicant has placed reliance
on a decision of the Supreme Court in the case of Lalsai

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2

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cr appa 1009-10.doc

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Khunte Vs Nirmal Singh & Ors reported in (2007)9 SCC 330. He
has placed reliance on the observations in para 11 therein
wherein it is observed that:

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"Therefore, this Court in recent decisions held that
the appellate court has power to stay the execution
of the conviction and if the appellate Court has
stayed the conviction then in that case, this will
not operate as a disqualification.

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He has also placed reliance on a decision of the
Supreme Court in the case of Ravikant S. Patil Vs Sarvabhouma
S Bagali reported in (2007) 1 SCC 673 : (2007) 1 SCC (Cri)
417 wherein it is held that the Court has enough power to
stay the conviction. In para 15 of the said decision, it is
observed as under:

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"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
the consequences if conviction was not stayed, that
is, the appellant would incur disqualification to

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3

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cr appa 1009-10.doc

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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
contentionoftherespondentthatthe
disqualification arising out of conviction continues
to operate even after stay of conviction."

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6.Reliance is also placed on a decision of the Supreme
Court in the case of Navjot Singh Sidhu Vs State of Punjab
reported in (2007)2 SCC 574 : (2007) 1 SCC (Cri) 627 wherein
also stay to the order of conviction as well as sentence was
granted.

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7.On the other hand, learned counsel for respondent no. 1
has placed reliance on a decision of the Supreme Court in the
case of Sanjay Dutt Vs State of Maharashtra reported in
2009(2) Bom.C.R.(Cri) 401. He pointed out that in the said
case also, the petitioner wanted to contest the election,
hence, he had sought suspension of conviction. He pointed
out that despite many favourable circumstances in favour of
the petitioner therein, the Supreme Court did not grant
suspension of conviction. He pointed out the observations in
para 6 therein which reads as under:

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"The petitioner is a well-known cine artist and
because of his contribution to art and cinema he has
got large number of fans throughout the country and

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4

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cr appa 1009-10.doc

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abroad. His father was also a well-known film
action and he was deeply involved in politics. At
one point of time, petitioner's father was Minister
in the Union Cabinet. The petitioner is not a
habitual criminal nor it has been brought to our
notice that he had involved in any other criminal
case. Despite all these favourable circumstances,
we do not think that this is a fit case where
conviction and sentence could be suspended so that
the bar under Section 8(3) of the Representation of
People Act 1951 will not operate against the
petitioner."

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8.I have carefully perused the decision in Sanjay Dutt
(Supra). In the said case, the Supreme Court has observed
that "In view of the serious offence for which he has been
convicted by the Special Judge, we are not inclined to
suspend the conviction and sentence awarded by the Special
Judge in the present case." In the said case, the petitioner
was charged under TADA and Arms Act, hence, it was, under
those circumstances that the observations came to be made by
the Supreme Court. However, in the present case, the
applicant has been convicted only for offences under IPC and
the main office is under Section 325 of IPC.

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9.Thereupon, Mr. Nalawade placed reliance on a decision
of this Court in case of Mahadev Rangnath Barde Vs State of
Maharashtra reported in CDJ 2002 BHC 028. He pointed out

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5

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cr appa 1009-10.doc

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that in the said case also, the applicant had sought
suspension of conviction in order to enable him to contest
the election of Panchayat Samiti. The said application came
to be rejected. While rejecting the said application, it was
observed as under:

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"9.Such a conduct of a person holding the post of
Sarpanch does not entitle him to the relief of
suspension of conviction. The facts of the case
further shows that the road through the complainants
field was granted by the Tehsildar therefore there
was no reason for the accused to go to the extent of
forming an unlawful assembly and causing injuries to
number of persons. This accused himself has
assaulted all the victims. I do not find this to be
a fit case to grant relief prayed for. Hence,
prayer for suspension of conviction is rejected.
Criminal application disposed of."

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10.I have perused the decision in the case of Mahadev
Barde. Evidence in the said case showed that Mahadev Barde
had assaulted the complainant-Vishnu Gangurde by means of an
axe. He had also assaulted one Hiraman by means of axe on his
head. In the said incident, large number of persons were
injured. Even lady members of the complainant's family i.e
his wife and daughter were forcibly dragged while the assault
was being caused. Thus, as the evidence in the said case
showed that the accused was carrying an axe and he had
himself assaulted two persons with the said axe, looking to

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6

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the nature of incident, this Court had observed that said
conduct of a person holding the post of Sarpanch does not
entitle him to the relief of suspension of conviction.

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11.As far as the facts in the present case are concerned,
there is only one injured person i.e Gangaram Raut. He is
the only person who has deposed about the incident. The
incident had occurred at about 07.00 p.m. in the Chowk at
Khadoli. Though the incident took place in the chowk, no
other person has been examined to corroborate the case of
Gangaram Raut. Gangaram Raut has stated that in all there
were seven persons and they have assaulted him. However,he
has not attributed any specific role to the present applicant
nor has Gangaram specifically stated that the applicant was
carrying any weapon and that the applicant assaulted him with
the said weapon. The evidence of Gangaram is very vague and
general in nature and it is not such as to inspire
confidence. All the injuries sustained by the Gangram were
simple in nature except one injury on the leg which was a
fracture. Gangaram has not attributed that injury to the
present applicant. PW 4 Doctor Shinde has admitted that the
injuries sustained by Gangaram would also be possible if he
was traveling by motorcycle and the motorcycle met with an
accident.

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7

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cr appa 1009-10.doc

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12.It is pertinent to note that the case of Gangaram is
that he was assaulted by seven persons who were armed with
various weapons. Yet, it is surprising to note that despite
being assaulted by seven persons who were armed with weapons,
he had sustained only simple injuries except the injury on
the leg, this prima facie appears a little implausible.
Moreover, the injury on the leg is not attributed to the
applicant. It is also to be noted that there was rivalry in
between Gangaram and the accused persons. Though the incident
had occurred on 29th May 1998, the FIR came to be lodged only
on the next day after 10.00 a.m. No explanation has been
furnished by Gangaram for delay in lodging the FIR.
Looking to all these facts, the case of the prosecution, does
appear to be suspect. Moreover, it is to be noted that the
applicant has been convicted under Section 325 with the aid
of Section 149 of IPC.

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13.Thus, in view of the above facts , I am inclined to
allow the application in terms of prayer clause (a).
Accordingly, application is allowed in terms of prayer clause
(a).

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14. Application disposed of.

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cr appa 1009-10.doc

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Dipak Lihati Patel v. the State of Maharashtra

Case brief

What is this about?

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Dipak Lihati Patel v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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