Desire To Contest Election Not An Exceptional Circumstance To Stay Conviction: Bombay High Court Rejects Former MLA Sunil Kedar's Plea

The Bombay High Court recently refused to stay the conviction of former Congress MLA Sunil Kedar in a bank scam case of over Rs. 153 Crores observing that just because he desires to contest the upcoming Assembly election that by itself is "not sufficient to stay the conviction mechanically".

Justice Urmila Joshi-Phalke of the Nagpur bench observed that mere disqualification from contesting election resulting from the conviction is not an exceptional circumstance to stay a conviction.

“merely because the accused has to represent his constituency, it could not be an exceptional circumstance for grant of stay to the conviction. An object of Legislatures in keeping away convicts from contesting elections is to be looked into while deciding such applications.”

The court rejected Kedar's application under Section 389(2) of the CrPC seeking a stay on his conviction and sentence dated December 22, 2023 by the Additional Chief Judicial Magistrate, Nagpur.

Sunil Kedar, a former Cabinet Minister in the state government and former Congress MLA representing Saoner Assembly Constituency, was the Chairman of the Nagpur District Central Cooperative Bank (NDCC Bank).

Kedar, along with six others is convicted for conspiracy to misappropriate funds of the bank. The funds were ostensibly invested in government securities through private brokers. The National Bank for Agriculture and Rural Development (NABARD) later revealed irregularities, prompting investigations.

Kedar lodged an FIR against the brokers, alleging misappropriation of funds by supplying only photocopies of securities instead of the originals. However, subsequent investigations led to charges against Kedar himself, accusing him of breaching trust and conspiring with the brokers to defraud the NDCC Bank.

The trial court found Kedar guilty under various sections of the IPC, including Sections 409, 406, 468, and 471 and sentenced him to rigorous imprisonment of five years and imposed a fine of Rs. 10 lakhs.

Kedar has filed an appeal against conviction before the Sessions Judge at Nagpur. Prior to approaching the High Court, his application for stay on conviction was rejected by the Sessions Judge on December 30, 2023.

Earlier this year, the high court suspended the execution of Kedar's sentence observing that he had an arguable case in his appeal and the trial court made observations contrary to presented evidence ignoring that Kedar himself lodged the FIR. He filed the present application seeking a stay on his conviction.

Senior Advocate SK Mishra for Kedar contended that if his conviction is not stayed, it would result in his disqualification under the Representation of the People Act, 1950, impacting both his personal rights and the rights of his constituents who had elected him. Section 8(3) of the Act states that a person convicted of any offence and sentenced to imprisonment for not less than two years shall be disqualified from the date of conviction and for six years after release.

Mishra argued that the suspension of the execution of the sentence should also result in a stay of the conviction, claiming irreparable damage if the conviction is allowed to operate, since Kedar's appeal has arguable points.

Special Public Prosecutor Siddharth Dave countered that the grounds raised by Kedar were not exceptional enough to warrant a stay of conviction. He argued that the purpose behind Section 8(3) of the RP Act was clear and must be upheld, adding that Kedar had adequate remedies through the appeal process without necessitating a stay of conviction. Dave argued that suspending a sentence is different from staying a conviction, with distinct considerations for each.

The court noted that while suspension of a sentence during an appeal is common when the sentence is short, staying a conviction is reserved for exceptional cases. The court emphasized that the power to stay a conviction should be exercised cautiously and only in rare, exceptional circumstances where not doing so would lead to injustice and irreversible consequences.

The court noted that the purpose of section 8(3) of the RP Act is to prevent individuals with criminal records from being elected to public office, which is crucial for maintaining the integrity and credibility of the democratic process.

The intention is to ensure that those who break the law do not get to make the law, thus maintaining the purity and probity in public life, the court said, adding that a stay on conviction should not be granted merely because the convicted individual wishes to contest an election.

The court noted that Kedar has been convicted for economic offenses with public money.

The Supreme Court in State of Gujarat v. Mohanlal Jitamalji Porwal and YS Jagan Mohan Reddy v. CBI highlighted the severe impact of economic offenses on the community and the need for such offenders to face justice. The Apex court has held that economic offenses with deep-rooted conspiracies and significant public fund losses are grave and should be treated seriously, the court noted.

Therefore, the court concluded that there is no exceptional circumstance for granting stay on Kedar's conviction and rejected the application.

Case no. – Criminal Application (Appln) No. 53/2024

Case Title – Sunil s/o Late Chhatrapal Kedar v. State of Maharashtra