STATE OF RAJASTHAN Vs. SALMAN KHAN

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 83 of 2015, Judgment Date: Jan 14, 2015

                                   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                                      ... APPELLANT

                            VERSUS

SALMAN SALIM KHAN                                      ... RESPONDENT

                               J U D G M E N T


SUDHANSU JYOTI MUKHOPADHAYA, J.


Leave granted.


2.    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.
Initially, the respondent sought permission of the  Court  on  a  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  to  a  period  of

imprisonment of at least 4 years. The  respondent  being  aggrieved  by  the

refusal of Visa by 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
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:

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.


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.

The instant case does not fall under any exceptional 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.   Apart  from  this  the  High  Court

considered the hardship caused to the respondent and thereafter  passed  the

order under challenge.

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

Court suspended his sentence with the following conditions:

Accused to appear before the court whenever the order to do so.

Accused to intimate the court in case he shifts a place of his residence  as

well as address of the new place of residence,

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

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."


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
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."
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
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 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 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 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 non-suspension of  conviction  will

not cause any irreversible  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)

................................................J.
(ADARSH KUMAR GOEL)

NEW DELHI,                                   


JANUARY 14, 2015.