Supreme Court Refuses Abdullah Azam Khan's Request to Restrain Trial Court From Passing Conviction Order in Forgery Case

Khan was convicted for staging a dharna and blocking traffic on a state highway in the Chhajlet area of Uttar Pradesh’s Moradabad district in 2008, but he has pleaded juvenility in this case, arguing that he was merely accompanying his father. In support of this, he has, among other things, referred to a November 2022 judgment of the Supreme Court upholding the disqualification of the former legislator from the 17^th Uttar Pradesh Legislative Assembly for not having attained the minimum qualifying age at the time of the election. According to this judgment, at the time of the offence for which he had recently been convicted, Khan was 15 years of age. On the last occasion, to resolve the controversy relating to Khan’s age, the court directed the Rampur district judge to submit a report on the ‘correct date of birth’. This aspect, the court further ordered, may be brought to the notice of the local court trying Khan in the other criminal case for allegedly forging age-proof documents, in order to seek the court's 'necessary indulgence'.

During today's hearing, Senior Advocate Kapil Sibal informed the bench that despite its order, the local court is continuing to conduct Khan's trial and pressed for it to be restrained from convicting Khan till the final report on his birth date is filed. The senior counsel also strongly protested against the State allegedly taking different positions with respect to the former legislator's age in two different proceedings. He argued -

"There are two dates of birth - one is 1990 and the other is 1993. In the other case, the State has taken the position that Khan was born in 1993 and has committed forgery of a passport. In this case, either date would establish the contention of juvenility. But, refusing to rely on any of the dates, the State advocated for a fresh inquiry. If the State accepted the position that they take in the other case, i.e., Khan was born in 1993, the current petition should succeed. How can the State do both things? Therefore, the other matter may be heard but no conviction order should be passed till the report comes in this case. They are hell-bent on convicting him. Heavens are not going to fall if it is [postponed]."

"It's a completely different proceeding relating to allegations of forgery," Additional Solicitor-General KM Nataraj said, objecting to Sibal's request. The law officer added, "It's a matter of evidence."

When the bench expressed its disinclination to pass any order with respect to the other proceedings, Sibal attempted to persuade it by arguing, "There are two legal principles here. One, can the State, having taken a position in one prosecution, take a different stance in another proceeding? There will also be two different decisions on Khan's date of birth."

"This is a special leave petition arising out of a prayer under Section 389 of the Code of Criminal Procedure for a stay of conviction," Justice Mishra pointed out. Justice Sundresh added -

"We cannot presuppose a conviction. If there's a conviction, our order will have an impact on it. The decision in the other case will be subject to our ultimate decision."

"By then, Khan will be jailed," Sibal exclaimed. While accepting that the scope of the Supreme Court's intervention in this issue was limited, the senior counsel pointed to the power to do complete justice under Article 142 of the Constitution. Referring to the factual background of the Supreme Court's November 2022 judgment, he added, "His birth certificate indicated 1993, but when he fought the first election, he claimed that his date of birth was 1991. Your Lordships know that in many cases, people give a different date of birth when taking admission to school."

"You can have an example: me," Justice Sundresh remarked, smiling.

Sibal continued, "They are now prosecuting me on the basis of this court's judgment. He is now stuck in this. Will Your Lordships not be kind enough to direct the execution of the sentence to be delayed, even if convicted? I am appealing to your conscience. Sometimes law stands in the way of justice. This is that kind of a case."

"We cannot interfere with the jurisdiction of the trial court," Justice Sundresh said firmly, before assuring that the controversy relating to Khan's age will be resolved promptly after the district judge's report is filed. Ultimately, the judge pronounced, "We find no reason to issue any interim order at this stage. As per the earlier order, post the main matter after the report on juvenility is filed."

Background

Mohammad Abdullah Azam Khan, the son of senior Samajwadi Party leader Azam Khan and former legislator, has approached the Supreme Court against an Allahabad High Court order refusing to stay the conviction in a 15-year-old case that led to his disqualification from the Uttar Pradesh legislative assembly.

In February this year, Khan – who was elected on a Samajwadi Party ticket to represent Suar constituency in Uttar Pradesh – was disqualified after being convicted and sentenced to two years in prison earlier that month. The incident dates back to 2008 when he, along with his father, was booked under Sections 341 (wrongful restraint) and 353 (assault or criminal force to deter public servant from discharge of his duty) of the Indian Penal Code for staging a dharna on a state highway after their cavalcade was stopped by police for checking in the wake of an attack on a CRPF camp in Rampur.

Khan’s plea for a stay on his conviction was rejected by a local court in Moradabad, after which he filed an application in the high court. The thrust of his argument was that he was a minor at the time of the alleged incident in 2008, alleging that the trial court had improperly treated him as an adult. This argument, however, did not find favour with the bench of Justice Rajiv Gupta, that dismissed his plea after noting that the embattled politician was attempting to secure a stay of his conviction on unfounded grounds, despite the well-established legal principle that convictions are suspended only in rare cases. The court, in its April 2023 ruling, also noted that Khan is facing 46 pending criminal cases and emphasised the importance of ‘purity in politics’.

This is the second time Khan has been disqualified from the state legislative assembly. In 2020, he was disqualified after a Rampur court convicted him for fabricating age proof documents. In 2019, the Allahabad High Court had set aside his membership on the ground that he was below 25 years of age at the time of filing the nomination, on the date of scrutiny of the nomination paper, and on the date of declaration of results. This verdict in an election petition was subsequently upheld by the Supreme Court in November last year.

Case Title

Mohammad Abdullah Azam Khan v. State of Uttar Pradesh | Special Leave Petition (Criminal) No. 5216 of 2023