A bench of the apex court headed by Chief Justice Dipak Misra held that various decisions of the top court earlier have settled the position on the effect of an order of an appellate court staying a conviction pending the appeal.
“Upon the stay of a conviction under Section 389 of the Cr. PC. the disqualification under Section 8 (Representation of the People Act) will not operate.
“The decisions in Ravi Kant Patil and Lily Thomas conclude the issue. Since the decision in Rama Narang, it has been well settled that the appellate court has the power, in an appropriate case, to stay the conviction under Section 389 besides suspending the sentence,” the bench also comprising Justice A. M. Khanwilkar and Justice D. Y. Chandrachud said.
The court said that the power to stay a conviction was by way of an exception. Before it is exercised, the appellate court must be made aware of the consequence which will ensue if the conviction is not to be stayed.
“Once the conviction has been stayed by the appellate court, the disqualification under Sections 1, 2 and 3 of Section 8 of the R P Act will not operate,” the court said.
The judgement said that under constitutional provisions, the disqualification operates by or under any law made by parliament. Once the conviction has been stayed during the pendency of an appeal, the disqualification which operates as a consequence of conviction cannot take or remain in effect.
The apex court held that an appellate court possesses the power to stay conviction under the Criminal Procedure Code and it was untenable that the disqualification which ensues from a conviction will operate despite the appellate court having granted a stay of the conviction.
The Supreme Court judgement came on a petition by Lok Prahari, an NGO, against the Allahabad High Court judgement dismissing a PIL seeking a declaration that a convicted MLA stood disqualified not withstanding the stay granted by the sessions judge.