If some foreign country is not granting permission to visit the
said country on the ground that the respondent has been convicted of
an offence and has been sentenced for five years of imprisonment under
the Indian Law, the said order cannot be a ground to stay the order of
conviction.
If
an
order
of
conviction
in
any
manner
is
causing
irreversible consequences or injustice to the respondent, it was open
to the court to consider the same. If the court comes to a definite
conclusion that the irreversible consequences/injustice would cause
to the accused which could not be restored, it was well within the
domain of the court to stay the conviction. No such ground has been
shown by the High Court while passing the impugned order. Further, we
find that now more than one year has passed and there is nothing on
the record to suggest that the respondent has again to visit UK for
further shooting of any film/movie.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 83 OF 2015
(Arising out of SLP(Crl.) No.5218/2014)
STATE OF RAJASTHAN
VERSUS
SALMAN SALIM KHAN
SUDHANSU JYOTI MUKHOPADHAYA, J.
Dated;JANUARY 14, 2015.
This appeal has been preferred by the State against the final
judgment and order dated 12th November, 2013 passed by the High Court
of Judicature for Rajasthan at Jodhpur in S.B. Criminal Miscellaneous
Application No.718 of 2013 in S.B. Criminal Revision Petition No.905
of 2007. By the impugned judgment, the High Court allowed the prayer
for suspension of order of conviction dated 10th April, 2006 passed by
the Judicial Magistrate during the pendency of the revision petition
on the ground that the order of conviction is coming in the way of
respondent to travel abroad.
3.
The factual matrix of the case is as follows:-
Crime No. IR No.163 of 1998 u/s 147,148 and 149 of IPC and u/s
9,39,51 and 52 of the Wild Life (Protection Act), 1972 and Section 27
of the Arms Act was registered against the respondent, pursuant to
which the respondent was arrested on 12th October, 1998. Thereafter,
Criminal
Case
No.206
of
1999
was
registered
and
Chief
Judicial
Magistrate, Jodhpur vide order dated 10th April, 2006 convicted the
respondent
u/s
51 of
the
Wild
Life
(Protection
Act),
1972
and
sentenced him to undergo simple imprisonment for five years alongwith
a
fine
of
Rs.25,000/-
and
in
default
to
further
undergo
simple
imprisonment for 3 months.
Aggrieved by the aforesaid order of conviction and sentence, the
respondent preferred an appeal being Criminal Appeal No.50 of 2006
before District and Sessions Judge, Jodhpur, which was dismissed vide
order dated 24th August, 2007.
Thereafter,
the
respondent
preferred
a
Criminal
Revision
Petition No.905 of 2007 before the High Court of Rajasthan under
Section 397 r/w Section 401 of the Cr.PC. The High Court by detailed
and reasoned order dated 31st August, 2007 suspended the sentence of
the respondent and granted bail to him under Section 391(1) of the
Cr.P.C. with inter alia restrictions that the respondent will not
leave the country without prior permission of the Court.
3
Initially, the respondent sought permission of the Court on a
Page 2
number of occasions to travel abroad in relation to his professional
engagement, which entailed shooting of films/commercials/shows as per
the
requirement
of
producer
and
director.
Subsequently,
after
a
period of almost 3.5 years, the respondent moved an application for
modification of the order dated 31st August, 2007 to the extent that
the respondent may be allowed to travel abroad without the permission
of the Court. The High Court vide order dated 21st February, 2011
allowed the prayer.
Meanwhile,
the
respondent
applied
for
a
United
Kingdom
Visa
which was rejected by the U.K. Border Agency Home Office on the
ground that the application does not satisfy the criteria set out for
grant
of
entry
clearance
or
leave
to
enter
the
U.K.
specially
referring to U.K. Immigration Rules laid down in Paragraph 320(2)(b)
of HC 395 states that entry clearance to the U.K. is to be refused if
an applicant has been convicted of an offence for which he has been
sentenced
respondent
to a
period
being
of
aggrieved
imprisonment
by
the
of
at
refusal
least
of
Visa
4
years.
by
the
The
U.K
Authorities, applied for administrative review which was rejected on
the ground on 20th August, 2013, which is reproduced hereunder:
“Honorary
legal
Advisors
have
review
all
the
information put forward in this case and their advice is
that from the evidence produced, the Indian Courts have
only suspended the execution of 5 years sentence.
4
On the basis of this legal advice, it is out view
that suspension of the execution of the sentence pending a
final court hearing does not alter or affect the fact that
you have been convicted of an offence and have been
sentence to 5 years imprisonment under Indian Law.
As only the execution of the sentence has been
suspended out initial decision to refuse your application
was correct and in line with our immigration Rules and
Guidance on criminal conviction. I therefore uphold the
decision to refuse entry clearance under paragraph 320 (2)
(B) of HC395.”
On
this
background,
the
respondent
filed
Crl.
Misc.
Appln.
No.718 of 2013 in SB Crl. Revision Pet. No. 905 of 2007 seeking
suspension of order of conviction and the same was allowed by the
impugned judgment.
4.
The correctness of the impugned judgment and order is assailed
by the appellant on the following ground:
(i)
The effect of suspension of conviction only takes away
the operative effect of conviction but the conviction as
the
fact
stands
until
reversion
and
acquittal
and
therefore the denial of Visa by the UK Authorities on the
factum of conviction is not going to be in any way be
altered by the suspension of conviction as the same is
not
binding
on
the
said
Authority
being
outside
the
jurisdiction of the Rajasthan High Court.
5
(ii)
There cannot be a blanket stay of conviction but there
can be a stay of conviction for a specific purpose and
not for all purposes and by that yard stick, the impugned
judgment
does
not
pass
the
test
as
it
is
a
blanket
suspension of conviction.
(iii)
The instant case does not fall under any exceptional
Page 4
circumstances.
According to appellant, the respondent-accused is also facing
two
criminal
cases
which
are
pending
before
the
Trial
Court,
therefore it was specifically directed that the respondent-accused
has to appear before the Trial Court according to the directions
passed by the Trial Court in this regard.
5. According to counsel for the respondent the impugned judgment
and order
dated
12th
November,
2013
is
a
reasoned
order.
The
conviction of the respondent was suspended on the ground that the
respondent is an actor and his profession requires him to travel
abroad but conviction of sentence is coming in his way to travel
abroad.
caused
Apart from this the High Court considered the hardship
to
the
respondent
and
thereafter
passed
the
order
under
challenge.
6
It was further contended that when a person is convicted and if
the conviction is not suspended or stayed, he may suffer from certain
disadvantages as consequences of his conviction. In the present case,
if the conviction of respondent is not permitted to remain suspended,
serious disqualification would come to visit the respondent as the
said order would prevent the respondent from even being considered
for a UK Visa in view of applicable norms of the UK Entry Clearance.
An order of conviction is a sufficient ground for refusal of entry
clearance. It would have serious consequences on the professional
career of the respondent which would be against the letter and spirit
of Article 19 (1) (a) and Article 19 (1) (g) of the Constitution of
India which guarantee all citizens of India freedom of speech and
expression and the freedom to practice any profession, or to carry on
any occupation, trade or business.
6.
We have considered the rival contentions raised by the parties
and also perused the record.
7.
The respondent-accused is convicted u/s 51 of the Wild Life
(Protection Act), 1972. The order of conviction was upheld by the
Appellate
Court.
Against
the
same,
the
respondent-accused
has
preferred a revision petition under Section 397 r/w Section 401 of
Cr.PC before the High Court of Judicature for Rajasthan at Jodhpur,
Rajasthan. The revision petition is pending for hearing. Initially on
31st August, 2007 the
revision
petition
was
admitted and
the High
7
Court suspended his sentence with the following conditions:
a. Accused to appear before the court whenever the order to do
so.
b. Accused to intimate the court in case he shifts a place of
his
residence
as
well
as
address
of
the
new
place
of
residence,
c. The accused/respondent shall not leave the country without
the prior permission of the court.
Later on, the High Court vide order dated 21st February, 2011
modified the condition regarding seeking permission to go abroad.
8.
From the aforesaid fact it is evident that when the sentence was
modified
vide
order
dated 21st February, 2011 the
High
Court
was
pleased to modify the order to enable the respondent to travel abroad
without permission of the Court.
The petition for suspension of
conviction was filed by the respondent due to denial of Visa by the
UK Authorities on the ground that the respondent has been convicted
in a criminal case and the Court has only suspended the execution of
five years sentence. The UK Authorities were of the view that the
suspension of the execution of the sentence pending a final court
hearing does not alter or affect the fact that the respondent has
been convicted of an offence and has been sentenced to five years
imprisonment under Indian law. The High Court while allowing the
application
filed
by
the
respondent
u/s
389
(1) of the Code of
8
Criminal Procedure, 1973 for suspension of the order of conviction,
passed the impugned judgment with following observation:
“The revision petition of the applicant was admitted vide
a detailed order. The sentence awarded to the applicant
was suspended.
The order of suspension of sentence was
modified and permission was granted to the applicant to
travel abroad without seeking permission of the court
each and every time.
The order of conviction is coming
in his way to travel abroad which has resulted in negating
the order granting him permission to go abroad. His
profession requires him to travel abroad.
He is not a
public servant and nor has he been convicted for any
corruption charges. It is not disputed that applicant has
always abided by the conditions imposed by various
courts. He has never absconded and has always made
himself available as and when required by the court
except when exempted. He has not violated any of the
conditions imposed by any court.
In view of the above, this Court is of the opinion that
application moved by the applicant deserves to be
allowed.”
Page 7
9.
In State of Tamil Nadu v. A. Jaganathan, (1996) 5 SCC 329 this
Court held that power to suspend conviction and sentence pending
appeal/revision
can
be
exercised
only
when
damage
caused
to
the
appellant/revisionist cannot be undone if he ultimately succeeds.
10.
Similar observation was made by this Court in Ravikant S. Patil
v. Sarvabhouma S. Bagali, (2007) 1 SCC 673.
In the said case, this
Court held:
“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
9
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 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.”
Referring to other decisions of this Court, in Ravikant S. Patil
this Court further observed:
“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.”
Page 8
11.
According
to
counsel
for
the
respondent
there
are
adequate
grounds to justify the impugned judgment as irreparable harm would be
caused to the respondent if the conviction is not stayed. He further
contended that respondent is an actor and his profession requires him
to travel abroad but conviction of sentence is coming in his way to
travel abroad.
However while passing the impugned judgment the High
Court has not given any finding that if the conviction is not stayed
irreparable
harm/irreversible
consequences
or
injustice would
be
10
caused
to
the
respondent.
The
High
Court
stayed
the
order
of
conviction mainly on the ground that the conviction is coming in
respondent’s way to travel abroad which has resulted in negating the
order granting him permission to go abroad.
12.
If some foreign country is not granting permission to visit the
said country on the ground that the respondent has been convicted of
an offence and has been sentenced for five years of imprisonment under
the Indian Law, the said order cannot be a ground to stay the order of
conviction.
If
an
order
of
conviction
in
any
manner
is
causing
irreversible consequences or injustice to the respondent, it was open
to the court to consider the same. If the court comes to a definite
conclusion that the irreversible consequences/injustice would cause
to the accused which could not be restored, it was well within the
domain of the court to stay the conviction. No such ground has been
shown by the High Court while passing the impugned order. Further, we
find that now more than one year has passed and there is nothing on
Page 9
the record to suggest that the respondent has again to visit UK for
further shooting of any film/movie.
13. For the reasons aforesaid, we set aside the impugned judgment
and order
dated
Judicature
for
12th
November, 2013 passed
Rajasthan at
by
the
High
Court
of
Jodhpur in S.B. Criminal Miscellaneous
11
Application No.718 of 2013 in S.B. Criminal Revision Petition No.905
of 2007 and remit the case to the High Court to decide the matter
afresh. It would be open to the respondent to show that if the order
of
conviction
is
not
stayed
it
will
cause
irreversible
consequences/injustice to him which cannot be undone if he ultimately
succeeds. It would be open to the State to oppose such prayer on the
ground
that
irreversible
non-suspension
of
conviction
will
not
cause
any
consequences or injustice to the respondent and the
same can be undone if he ultimately succeeds.
14.
The appeal stands disposed of with aforesaid observations.
................................................J.
(SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
JANUARY 14, 2015.
................................................J.
(ADARSH KUMAR GOEL)
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